From Cage To Choice: How Prajwala Dismantled India's Paternalistic Anti–Trafficking Model
The Supreme Court took 297 pages to say something Indian law has avoided for seventy years that a rescued woman is not the state's property. The judgment does not tinker at the edges of the ITPA. It rejects the statute's foundational assumption that rescue necessarily means confinement. For decades, India's response to rescued trafficking survivors was largely centered on institutional rehabilitation through protective homes. The Immoral Traffic (Prevention) Act (ITPA), 1956 encoded this logic directly to rescue a woman, then decide for her where she lives, for how long, and under what conditions. Prajwala v. Union of India (2026 INSC 609), decided on 29 May 2026, changes that. The Court does not merely reform the model, it rejects the premise that the state knows better than the survivor what she needs.
The Architecture of the Old Model
The ITPA was enacted with the objective of protecting individuals rescued from trafficking and fulfilling India's international obligations under the UN Convention for the Suppression of the Traffic in Persons (1949). Protective homes were conceived as welfare–oriented institutions intended to provide safety and rehabilitation. However, Section 17(4) of this act authorised mandatory institutional placement for extended periods, with limited mechanisms for individual choice or periodic reassessment, raising concern regarding autonomy and procedural safeguards.
In a significant observation, the court noted that the mandatory and fixed period institutional custody “slowly begins to mimic a carceral stay or detention in a borstal institution”. The Phrase “carceral stay” captures a troubling reality. A woman rescued from exploitation, only to find herself confined once again–this time by the state and in the name of protection.
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 who have the capacity to make decisions on how they wish to be empowered. —- J.B. Pardiwala, J.
The Agency–Based Turn
The judgement's principal doctrinal innovation lies in its interpretation of Article 21 as protecting not only life and personal liberty but also individual autonomy and decision–making capacity. The Victim Protection Plan contained in paragraph 362 of the judgement translates this constitutional principle into an actionable framework. Its provisions are guided by two new governing principles: the state's obligation to minimise unnecessary interference and the requirement that protective measures be grounded in the informed consent of the survivor.
The first principle requires authorities to determine, at the earliest stage of intervention, whether the individuals concerned are voluntary sex workers. Where such voluntariness is established, the automatic application of ITPA procedures is no longer presumed. This approach introduces an important procedural safeguard aimed at preventing unnecessary institutional intervention and ensuring that enforcement measures remain appropriately targeted.
The second principle places considerable emphasis on the victim's autonomy by requiring decision–makers to give substantial weight to her expressed preferences throughout the rehabilitation process. While exceptions exist in situations involving coercion, threat, or undue influence, these exceptions are narrowly tailored and do not diminish the general presumption in the favour of respecting individual autonomy.
The Constitutional Grounding
The court reasoning is grounded in established Article 21 jurisprudence concerning dignity, rehabilitation, and personal liberty. It recognises that the state's obligation toward victims extends beyond rescue and protection. Meaningful rehabilitation requires measures that enable individuals to regain independence, including access to “legal aid, livelihood support, vocational training, compensation, and other forms of support necessary for reintegration into society”.
The Court's reasoning was also informed by India's obligations under the Palermo Protocol (2000). The guideline 1 of this protocol emphasises a victim–centric approach to anti–trafficking measures and requires the state to safeguard fundamental human rights, including freedom of movement. Applying this standard, the court found that the ITPA regime of mandatory institutional custody raises serious concerns regarding compliance with international human rights commitments.
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 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” (Para. 395).
What Changes on the Ground
The practical implications of the Victim Protection Plan are substantial. Its implementation would require every state to designate, at ADGP level, a Police Nodal Officer specifically responsible for the anti–trafficking operations that replaces the current diffuse and unaccountable structures. Additionally, the state must also recognise “welfare institutions or organisations” under Section 15(6A) of ITPA so rescued persons have the option of community–based, non custodial rehabilitation.
The Court intervention extends beyond structural reforms to address conditions within protective homes themselves. The Victim Protection Plan requires management committees to ensure that residents are treated with dignity and respect. The Plan goes further; it explicitly bans punitive and coercive practices inside these homes. That detail matters. It is an uncomfortable admission that some protective homes have themselves been sites of abuse.
The Limitation Worth Naming
The Court was candid about the boundary of judicial power. Drawing upon the principles established in Vishaka v. State of Rajasthan [(1997) 6 SCC 241], it noted that judicial guidelines operate in the absence of legislative action and remain effective only until parliament enacts a statutory framework. Consequently, Section 17 of the ITPA remains legally intact. The judgement therefore focuses not on invalidating the provision but on directing its application in a manner consistent with constitutional values.
After twenty–two years of litigation, the Prajwala litigation proceedings have culminated in a judgement that provides a coherent framework for victim protection and rehabilitation. While significant implementation challenges remain, the decision establishes a more participatory model in which survivors are recognised as active stakeholders in decisions affecting their lives.
Author is a law student at Jamia Millia Islamia, New Delhi. Views are personal.