The Supreme Court held that trafficking of children for commercial sexual exploitation can attract prosecution under the POCSO Act, along with relevant provisions of the Bharatiya Nyaya Sanhita and the Immoral Traffic (Prevention) Act, ensuring stronger legal protection for minors.
The Supreme Court ruled that cases involving trafficking of children for Commercial Sexual Exploitation (CSE) may be prosecuted under the stringent POCSO Act, together with the relevant provisions of the Bharatiya Nyaya Sanhita and the Immoral Traffic (Prevention) Act.
A bench comprising Justices J. B. Pardiwala and R. Mahadevan issued a series of directions aimed at addressing concerns raised by sex workers, while also clarifying the legal basis for prosecuting perpetrators and ensuring the rehabilitation of victims.
It further held that the consent of an adult victim to the intended exploitation is immaterial if any of the specified means including threat, force, coercion in any form, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or the giving or receiving of payments or benefits to obtain consent are involved.
It said,
“The consent of a child victim of trafficking is irrelevant, regardless of whether or not ‘means’ have been used… 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 ‘consented’ should be deemed to be irrelevant,”
The bench said that a person’s knowledge that they are being employed in the sex industry or in prostitution does not negate trafficking victimhood, because they may have been misled about the real conditions of work, which later prove exploitative.
The court explained that Article 23 of the Constitution prohibits trafficking in human beings, beggars, and all similar forms of forced labour, and that its scope is broad and not limited. It said the provision targets human trafficking in any form and applies not only to the State but also to private individuals involved in such conduct.
Noting its previous approach, the court said that when interpreting Article 23 and related legislation, it has consistently adopted a liberal reading presuming and extending protective safeguards to persons living in conditions of exploitation.
It said,
“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 court observed that there is no uncertainty in Indian law that every instance of sexual exploitation involving a child is non-consensual by law. It added that the POCSO Act was created to cover all kinds of sexual abuse of children, including sexual harassment, aggravated sexual assault, and the production, storage, or possession of child sexual abuse material, among other offences.
It said,
“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 enacted, several aspects of the prosecution change significantly.
It added,
“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,”
The directions were issued in the case filed by NGO Prajwala, seeking steps to curb human trafficking and ensure that the rights of victims of commercial sexual exploitation are enforced.
The bench stated that its intervention sought to move away from treating trafficking victims as merely passive recipients of rescue, and instead to recognize them as people capable of making informed choices about how they want to be empowered.
It also said that in trafficking offences involving CSE, the applicable legal framework is not fixed. The provisions vary based on factors such as the victim’s age, the means used by the trafficker, and the nature of the exploitative acts inflicted upon the victim.
It said,
“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,”
Finally, the court emphasized that rehabilitation is essential; without it, victims are likely to return to the same harmful conditions that originally made them targets. It said this is consistent with the requirements of Articles 21 and 23 that victims of exploitative systems receive appropriate rehabilitation.