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SUPREME COURT OF INDIA
J.B. PARDIWALA, R. MAHADEVAN, JJ.
Prajwala – Appellant
Versus
Union of India and Others – Respondents
Miscellaneous Application No. 530 of 2022, Writ Petition (Civil) No. 56 of 2004
Decided On : 29-05-2026
Key Points: - Right to rehabilitation of trafficking victims is recognized under Articles 21 (right to live with dignity) and 23 (prohibition of trafficking and forced labour) of the Constitution (!) (!) (!) - Rehabilitation includes protection from further harm, material well-being, and social recognition, with State obligations beyond rescue and punishment (!) (!) (!) (!)
The Court mandates that the State take reasonable measures toward the progressive realisation of the right to rehabilitation, including safeguarding dignity and preventing re-trafficking (!) (!) (!)
The Judgment emphasizes a human-rights approach centering the victim, not solely a criminal-justice approach (!) (!) (!)
Key Points: - The Court declines to mandatorily require creation of OCIA, finding no gap or lacuna justifying mandamus for its establishment; existing bodies (NIA, AHTUs, CBI) sufficiently cover investigation and coordination (!) (!) (!) - It acknowledges that while OCIA was proposed, Parliament would need to enact or amend law; Court cannot compel legislature to enact a law in a prescribed manner (!) (!)
Key Points: - The Court calls for a threshold inquiry to identify voluntary adult sex workers at the outset to spare them the full machinery of Section 17, recognizing non-interference for those willing participants (!) (!) (!) - It emphasizes consent of the victim as primary in final decisions on detention or reintegration, with exceptions only to protect safety or if consent is not voluntary due to coercion/undue influence, properly reasoned in writing (!) (!) (!) - It cites Budhadev Karmaskar and Law Commission findings supporting non-interference for voluntary adult sex workers during raids (!) (!)
JUDGMENT :
J.B. PARDIWALA, J.
For the convenience of exposition, this judgment is divided into the following parts:-
| I. | PREFACE |
| II. | CONTEXT SETTING |
| III. | HISTORY OF THIS LITIGATION |
|
| A. THE ORIGINAL WRIT PETITION AND THE CIRCUMSTANCES UNDER WHICH IT CAME TO BE DISPOSED |
| B. DEVELOPMENTS POST THE DISPOSAL OF THE ORIGINAL WRIT PETITION | |
| IV. | SUBMISSIONS OF THE PARTIES |
|
| C. SUBMISSIONS ON BEHALF OF THE PETITIONER |
| D. SUBMISSIONS ON BEHALF OF THE RESPONDENT | |
| V. | ISSUES FOR CONSIDERATION |
| VI. | ANALYSIS |
|
| A. UNDERSTANDING HUMAN TRAFFICKING |
| B. THE LEGAL LANDSCAPE SURROUNDING HUMAN TRAFFICKING FOR THE PURPOSES OF CSE | |
| i. International Legal Framework on Human Trafficking – The Palermo Protocol | |
| a. Definition of the term “Trafficking in Persons” | |
| ‘Action’ Element | |
| ‘Means’ Element | |
| ‘Exploitation’ Element | |
| Irrelevance of Consent | |
| b. Definitional uncertainties | |
| c. Prosecution, Protection and Prevention | |
| ii. Domestic Legal Framework on Human Trafficking for the purposes of CSE | |
| a. Article 23 of the Constitution – Prohibition of traffic in human beings and forced labour | |
| b. ITPA, 1956 | |
| Necessary prelude to the ITPA – the conflation between sex trafficking and prostitution | |
| Understanding the definition of “prostitution” and thereby, demarcating the “victim” | |
| Punishing the perpetrators | |
| Penalising the prostitute – how, when and under what circumstances? | |
| Mechanism for intervention – removal under Section 15, rescue under Section 16 and voluntarily application under Section 19 | |
| Dealing with the persons making an application under Section 19 and those removed under Sections 15 and 16 respectively | |
| Protective homes | |
| Establishment of special courts | |
| c. BNS, 2023 | |
| Section 143 | |
| Other aspects | |
| d. On a reading of the Palermo Protocol, ITPA and BNS respectively, who can be referred to as “victims of ‘trafficking’ for CSE”? | |
| e. Legislations dealing specifically with children | |
| JJA– Children in need of care and protection and the CWC | |
| POCSO Act | |
| f. Other institutional and policy measures | |
| Anti-Human Trafficking Cell and AHTUs | |
| NALSA Scheme on Victims of Trafficking and Commercial Sexual Exploitation, 2015 | |
| Mission Shakti Programme for Women: OSCs and Shakti Sadans | |
| C. | VICTIMS OF TRAFFICKING FOR CSE AND THEIR RIGHT TO REHABILITATION |
|
| i. Right to Live with Dignity – What does it include? |
|
| ii. Victims’ Right to Rehabilitation |
|
| iii. Scope of the right to rehabilitation of victims of trafficking for CSE |
| 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? |
| 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 |
| ii. Precursor – Setting the Context to the Victim Protection Plan | |
| a. Conflation between Sex Trafficking and Prostitution –Supporters v. Opponents | |
| b. ITPA – Identifying the ‘victims’ and applicable procedures | |
| c. Consequences of the Conflation | |
| Need for a threshold inquiry for adult voluntary sex workers | |
| Need for Consent to be the driving factor | |
| d. Qualifications & Clarifications | |
| e. Other aspects | |
| iii. Guidelines on the “Victim Protection Plan” | |
| a. Fundamental Principles | |
| b. Pre-rescue | |
| Strengthening the AHTUs | |
| Initiation of Rescue | |
| c. Rescue | |
| d. Post-rescue | |
| e. Rehabilitation | |
| f. Repatriation/Reintegration | |
| g. Prose g.cution and Trial | |
| h. Prevention and training | |
| i. Guidelines for persons making an application under Section 19 ITPA | |
| F. | CO |
The court emphasized the urgent need for comprehensive legislation addressing the protection and rehabilitation of trafficking victims, alongside prevention and prosecution measures.
(1) Courts must follow and implement law – Courts cannot commit violence against law.(2) Kidnapping and rape of minor girl – When such offences of rape and aggravated penetrative sexual assault are c....
Custody of daughter – Child cannot be handed over to mother who is allegedly using her daughter in prostitution racket.
A child rescued under the Immoral Traffic Prevention Act must be treated as a victim needing care, not returned to a parent with allegations of exploitation.
Detention of adult victims in protective homes against their will without justification violates their fundamental rights, emphasizing rehabilitation rather than punishment under the Immoral Traffic ....
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