POCSO Act applicable when victim of commercial sex trafficking is minor: SC

New Delhi: The Supreme Court has ruled that cases involving the trafficking of children for Commercial Sexual Exploitation (CSE) may be prosecuted under the Protection of Children from Sexual Offences (POCSO) Act, in addition to relevant provisions of the Bharatiya Nyaya Sanhita (BNS) and the Immoral Traffic (Prevention) Act (ITPA).

A bench comprising Justices J B Pardiwala and R Mahadevan, in an order passed on Friday, also issued several directions aimed at addressing the concerns of sex workers while clarifying the legal framework governing the prosecution of offenders and the rehabilitation of victims.

The court observed that the consent of an adult victim to the intended exploitation has no legal relevance if any of the recognised means of trafficking, including threats, force, coercion, abduction, fraud, deception, abuse of power, abuse of vulnerability, or the exchange of payments or benefits to secure consent, have been employed.

“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 further stated that a person’s knowledge that they are entering the sex industry or prostitution does not automatically disqualify them from being considered a trafficking victim. Such individuals may have been misled about the nature or conditions of the work and subsequently subjected to exploitation.

Referring to Article 23 of the Constitution, the court noted that it prohibits trafficking in human beings, beggars and other similar forms of forced labour. It emphasised that the provision has a broad scope and applies not only against the State but also against private individuals engaged in such activities.

The bench pointed out that courts have consistently adopted a liberal interpretation of Article 23 and related legislation, extending protection and benefits to persons living under exploitative conditions.

“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 explained that Indian law leaves no doubt that any form of sexual exploitation involving a child is non-consensual. It noted that the POCSO Act was enacted to address all forms of sexual abuse against children, including sexual harassment, aggravated sexual assault, and offences related to child sexual abuse material.

“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 observations came in a case filed by NGO Prajwala, which sought directions for curbing human trafficking and ensuring enforcement of the rights of victims of commercial sexual exploitation.

The bench said the court had consciously sought to move away from viewing trafficking victims merely as passive recipients of rescue efforts and instead acknowledge them as individuals capable of making informed decisions regarding their empowerment.

It further observed that the legal provisions applicable in trafficking cases involving CSE depend on multiple factors, including the victim’s age, the methods used by the trafficker, and the nature of the exploitation involved.

“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 court also underscored the importance of rehabilitation, noting that without adequate support, victims may return to the same circumstances that made them vulnerable to trafficking. It said rehabilitation is a fundamental requirement flowing from Articles 21 and 23 of the Constitution and is essential for victims of exploitative systems.