POCSO Act applies if victim of commercial sex trafficking is minor: SC

The Supreme Court has held that cases involving the trafficking of children for Commercial Sexual Exploitation (CSE) can attract charges under the stringent POCSO Act, alongside the relevant provisions of the Bharatiya Nyaya Sanhita and the Immoral Traffic (Prevention) Act.

A bench of Justices J B Pardiwala and R Mahadevan on Friday issued a slew of directions to mitigate the concerns of sex workers, while clarifying the legal framework for the prosecution of perpetrators and the rehabilitation of victims.

It said the consent of an adult victim to the intended exploitation is irrelevant if any of the listed “means,” like the use of threat, force, other forms of coercion, abduction, fraud, deception, abuse of power, abuse of a position of vulnerability, or the giving or receiving of payments or benefits to achieve the consent of a person, are used.

“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,” it said.

The bench said a person’s awareness that they are being employed in the sex industry or prostitution does not exclude them from being a victim of trafficking, as they may have been deceived about the conditions of work, which later turned out to be exploitative.

The top court said Article 23 of the Constitution prohibits trafficking in human beings, beggars, and all other similar forms of forced labour, and its ambit is wide and unlimited. It strikes at human trafficking in whatever form it is found and is enforceable not only against the State but against any private individuals engaged in such practices.

The bench noted that while dealing with Article 23 or legislations enacted to give effect to it, the court has consistently adopted a liberal interpretation, presuming and extending protections and benefits to all those in conditions of exploitation.

“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,” it said.

The court said this was because there is no ambiguity in Indian law regarding the fact that every act of sexual exploitation involving a child is non-consensual as a matter of law, and the POCSO Act was designed to cover all forms of sexual abuse against children, including sexual harassment, aggravated sexual assault, and the production, storage or possession of child sexual abuse material, among others.

“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.

“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,” it said.

The bench passed the order in the case filed by NGO Prajwala seeking directions to curb human trafficking and the enforcement of the rights of victims of commercial sexual exploitation.

It said the court’s conscious effort was to move away from treating trafficking victims merely as passive subjects of rescue and instead recognise them as individuals capable of making informed decisions on how they wish to be empowered.

The bench said when dealing with an offence of trafficking for CSE, the applicable legal provisions are not static, and they vary depending on a combination of factors, such as the age of the victim, the means employed by the trafficker, and the specific nature of the exploitative acts to which the victim was subjected.

“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,” it said.

The top court said without rehabilitation, the victim returns to the very same conditions that made her a target in the first place, and thus it is the plainest requirement of Articles 21 and 23, respectively, that victims of exploitative structures must be suitably rehabilitated.