NEW DELHI, The Supreme Court has held that cases involving trafficking of children for commercial sexual exploitation can attract charges under the stringent POCSO Act, along with relevant provisions of the Bharatiya Nyaya Sanhita Act and the Immoral Trafficking Act.
A bench of Justices JB Pardiwala and R Mahadevan on Friday issued a slew of directions to alleviate the concerns of sex workers, while clarifying the legal framework for prosecution of offenders and rehabilitation of victims.
It said that an adult victim’s consent to the intended exploitation was irrelevant if any of the aforementioned “means” were used, such as the use of threats, force or other forms of coercion, kidnapping, fraud, deception, abuse of power, exploitation of a position of vulnerability, or giving or receiving payments or benefits to obtain someone’s consent.
“The consent of a child victim of trafficking is irrelevant, regardless of whether the ‘means’ were used or not… Lack of consent does not constitute an element of the crime of trafficking in persons.
“Consequently, the focus must be firmly on the actions and intentions of the perpetrators, and once the elements of the crime of trafficking have been proven, including the use of one of the specified means, any defense or claim that the victim ‘consented’ must be considered irrelevant.”
The court said that a person’s awareness that he is working in the sex or prostitution industry does not prevent him from being a victim of trafficking, as he may have been deceived about the working conditions, which later turned out to be exploitative.
The Supreme Court said that Article 23 of the Constitution prohibits human trafficking, beggars and all other similar forms of forced labor, and its scope is broad and unlimited. It strikes human trafficking in any form and is enforceable not only against the state but against any private individuals involved in such practices.
The bench noted that while dealing with Article 23 or the legislation enacted to give effect to it, the Court has consistently adopted a liberal interpretation, which assumes and extends protections and benefits to all those living in conditions of exploitation.
“Where the victim of human trafficking for CSE is a child, the provisions of the POCSO Act may apply alongside Sections 143 and 144 BNS respectively and/or provisions of the ITPA,” she said.
The court said that this is because there is no ambiguity in Indian law regarding the fact that every act of sexual exploitation involving a child is not consensual as a matter of law, and the POCSO Act is designed to cover all forms of sexual abuse against children, including sexual molestation, aggravated sexual assault, production, storage or possession of child sexual abuse material, among others.
“Therefore, in all cases where sexual exploitation of a child involves acts punishable under the POCSO Act, the perpetrators will be charged and prosecuted under this Act. Once the POCSO Act is enacted, several aspects of prosecution change significantly.
“The procedures for reporting the crime, recording the victim’s statement, and conducting the medical examination are subject to the provisions specified in the POCSO Act, which are designed to be more sensitive and protective of the interests of the child,” she said.
The bench passed the order in the case filed by NGO Prajwala seeking directions to curb human trafficking and enforce the rights of victims of commercial sexual exploitation.
She said that the Court’s conscious efforts had been aimed at moving away from treating victims of trafficking as merely passive subjects to rescue, and instead recognizing them as individuals capable of making informed decisions about how they wish to be empowered.
The court said that when dealing with the crime of human trafficking for CSE purposes, the applicable statutory provisions are not fixed, and vary depending on a range of factors, such as the age of the victim, the means used by the trafficker, and the specific nature of the exploitative acts to which the victim was subjected.
“There is no single piece of legislation that acts in isolation when it comes to the crime of human trafficking for the purposes of CSE. The investigating officer must therefore approach each case with a comprehensive appreciation of the applicable legal framework and remain aware of the full range of provisions that the facts of a particular case may attract.”
The Supreme Court said that without rehabilitation, the victim returns to the same conditions that made her a target in the first place, so the clearest requirement in Articles 21 and 23, respectively, is that victims of exploitative structures must be adequately rehabilitated.
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