In a landmark ruling aiming to mitigate the concerns of the victims of trafficking for commercial sexual exploitation (CSE), the Supreme Court has held that the consent of adult sex workers must be the primary consideration in decisions relating to rehabilitation, reintegration, and placement in protective homes.

While adjudicating a miscellaneous plea seeking guidelines and directions to protect the fundamental rights of victims of trafficking for CSE, a bench of Justices J.B. Pardiwala and R. Mahadevan, accepting Senior Advocate Ms. Aparna Bhat submission, regarding the preparation of a 'Victim Protection Plan', held that victims cannot be treated as passive objects of rescue and rehabilitation, and that their choices and autonomy must be respected.

The Court rejected the paternalistic assumptions under the existing framework i.e., Section 17 of the Immoral Traffic (Prevention) Act, 1956 (ITPA), which often treats all persons rescued from prostitution-related situations in the same manner, irrespective of whether they were trafficked, coerced, or voluntarily engaged in sex work. According to the bench, such a "one-size-fits-all" approach fails to account for the diverse realities of those brought before magistrates.

“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.”, the Court observed.

Instead, the Court held that when an adult person is produced before a magistrate under Section 17, a threshold inquiry must first be conducted to determine whether the individual is a voluntary adult sex worker and whether she wishes to be placed in long-term protective custody.

The inquiry must determine:

• Whether the individual considers herself to be engaging in Commercial Sex Work voluntarily;

• Whether she wishes to be placed in long-term safe custody;

• Whether any expressed preference is genuinely voluntary.

The Court directed that social workers should assist in this process through a preliminary assessment, but stressed that the victim's own statement must receive primacy.

A magistrate may disregard the victim's wishes only in exceptional situations where release would expose her to a serious safety risk or where the expressed consent appears to be the product of coercion, threats, tutoring, or undue influence. Any departure from the victim's wishes must be supported by written reasons.

The Court identified three distinct groups: those trafficked against their will, those initially trafficked but later continuing voluntarily, and those who entered sex work voluntarily. It cautioned that applying identical rescue and rehabilitation mechanisms to all three categories may produce unjust outcomes.

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.

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.

Referring to the case Budhadev Karmaskar v. State of W.B., (2022) 20 SCC 220, where while issuing certain directions pertaining to the rehabilitation of sex workers/prostitutes, the Court observed that 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 Court reiterated that voluntary adult sex workers should not ordinarily be subjected to rescue and detention mechanisms intended for trafficking victims, unless their explicit consent was involved.

“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 sex workers will not be coercive in any manner, and it shall be voluntary on the part of the sex workers.”, the court observed.

“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.”, the court added.

Headnote

Constitution of India, 1950 — Articles 21 & 23 — Human Trafficking for Commercial Sexual Exploitation (CSE)— Right to Rehabilitation — Held, a combined reading of Articles 21 and 23 establishes that victims of trafficking for CSE possess a fundamental right to rehabilitation - The constitutional obligations owed to victims of exploitative structures extend beyond a prevention, rescue, and punishment paradigm to comprehensive rehabilitation - State's failure to provide a robust "Victim Protection Plan" and adequate rehabilitation infrastructures violates Articles 21 and 23 - Detailed guidelines issued under Articles 32 and 142 to govern pre-rescue, rescue, post-rescue, rehabilitation, and repatriation of victims until the enactment of comprehensive central legislation. [Paras 56, 277-281, 290 - 303]

Immoral Traffic (Prevention) Act, 1956 (ITPA) — Sections 15, 16, 17, 19, 21 & 23 — Bharatiya Nyaya Sanhita, 2023 (BNS) — Sections 111, 143 & 144 — Conflation between Sex Trafficking and Prostitution — Duality of thresholds under ITPA and BNS — Held, the ITPA treats all third-party involvement in prostitution as inherently exploitative without requiring a "means" element, whereas Section 143 BNS strictly requires the fulfillment of all three elements (action, means, purpose) for adults - For the purpose of the protective protocol, "victims of trafficking for CSE" collectively includes individuals identified under both the ITPA and BNS frameworks. [Paras 162, 209, 217-219]

ITPA, 1956 — Section 17 — Heterogeneity of Victims — Threshold Inquiry & Consent — Held, the mechanism under Section 17 uniformly processes all individuals produced after a raid without differentiation - Magistrates must conduct an initial threshold inquiry under Section 17 to identify adult voluntary sex workers who do not wish to be subjected to long-term safe custody, respecting the principle of non-interference - a victim's informed consent must be the driving and primary factor in passing final orders for detention in a protective home or family restoration - Forcible imposition of rehabilitation is alien to human dignity - Exceptions are permissible only when the victim's safety is at imminent risk or consent is extracted via coercion, threat, or tutoring. [Relied on People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235; Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161; Neeraja Chaudhary v. State of M.P., (1984) 3 SCC 243; Public Union for Civil Liberties v. State of T.N., (2004) 12 SCC 381; Dr. Ashwani Kumar v. Union of India, (2020) 13 SCC 585; Budhadev Karmaskar v. State of W.B., (2022) 20 SCC 220; Paras 324, 329, 335, 336, 343, 348 352, 400-450]

Rights-Based Re-framing of Trafficking - The Supreme Court observed that human trafficking cannot be viewed solely through the prism of a criminal justice or crime-control response - Secure convictions do not address the multi layered material, physical, and psychological trauma suffered by victims - Under a human rights framework grounded in Articles 21 and 23 of the Constitution, victims must be recognized as rights-holders at the centre of the state's response - Rehabilitation is a constitutional guarantee, equal to or more important than rescue, since returning a victim to a site of vulnerability without material or psychological protection risks immediate re-trafficking. [Paras 254-256, 278-281]

Existence of Legislative Gaps & Poor State Implementation - Supreme Court noted that despite commitments made by the Union of India in 2015 to enact a comprehensive law and establish an Organised Crime Investigation Agency (OCIA), no such dedicated legislation materialized - Reviewing data across various States/UTs, Supreme Court identified severe gaps in current setups, including non-functional One-Stop Centres (OSCs), gross deficiency of referral staff, a lack of mental healthcare and vocational training inside Shakti Sadan homes, an absence of mandatory rule-formulation by several States under Section 23 of the ITPA, and an entire omission of Half-way Homes – Supreme Court concluded that the State has failed to take "reasonable measures" to progressively realize the right to rehabilitation. [Paras 298-302]

Restructuring Section 17 ITPA: Agency & Primacy of Consent – Supreme Court heavily criticized the "one-size-fits-all" approach under Section 17 of the ITPA, which indiscriminately processes involuntary trafficked victims alongside adult voluntary sex workers – Held that the i. Threshold Inquiry - Magistrates are directed to conduct a preliminary inquiry to identify voluntary adult sex workers and exempt them from intrusive custody or family restoration processes, keeping in line with the principle of non-interference; ii. Primacy of Consent - For victims of trafficking, long-term institutionalization or family restoration cannot be forcibly imposed against their volition. Forcible rehabilitation violates the intrinsic dignity of a person - A victim's informed consent must govern the final orders passed by Magistrates, with judicial exceptions restricted strictly to cases of documented coercion, tutoring, or imminent physical threat to the victim's safety. [Paras 329 – 352]

Interim Directions on the Victim Protection Plan - Invoking its powers under Articles 32 and 142, the Supreme Court laid down extensive guidelines encompassing the pre-rescue, rescue, post-rescue, rehabilitation, and repatriation stages - These include – i. Mandatory notification of Anti-Human Trafficking Units (AHTUs) as specialized police stations with multi-disciplinary composition; ii. Curbing degrading and unscientific "mass raids" as a default option; iii. Mandating the immediate production of child victims before Child Welfare Committees (CWCs) in terms of the Juvenile Justice Act, overriding ITPA court procedures; iv. Ensuring strict protection of identity, free professional legal aid, psychological de-addiction programs, and individual care plans; v. These guidelines shall operate as the binding law of the land until the Parliament steps in to fill the vacuum. [Paras 223 - 362]

Also from the judgment - Supreme Court Issues Comprehensive Victim Protection Plan For Human Trafficking Survivors, Calls For Legislative Reforms

Cause Title: PRAJWALA VERSUS UNION OF INDIA & ORS.

Citation : 2026 LiveLaw (SC) 574

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