‘No child can consent to exploitation’: SC says POCSO applies in child sex trafficking cases

New Delhi: The Supreme Court has ruled that cases involving the trafficking of children for commercial sexual exploitation can attract charges under the Protection of Children from Sexual Offences (POCSO) Act, in addition to provisions under the Bharatiya Nyaya Sanhita (BNS) and the Immoral Traffic (Prevention) Act (ITPA).

The judgment came while hearing a petition filed by NGO Prajwala seeking stronger measures to combat human trafficking and protect victims of commercial sexual exploitation.

Child victims protected under POCSO Act

A bench of Justices J B Pardiwala and R Mahadevan clarified that when a victim of trafficking for commercial sexual exploitation is a child, provisions of the POCSO Act may be invoked alongside Sections 143 and 144 of the BNS and relevant provisions of the ITPA. The court noted that Indian law leaves no ambiguity on the issue, as every act of sexual exploitation involving a child is considered non-consensual.

The judges said that whenever the exploitation of a child involves offences punishable under the POCSO Act, perpetrators must be charged and prosecuted under the special legislation. The law also provides child-sensitive procedures for reporting offences, recording statements and conducting medical examinations.

Consent of trafficking victims not a valid defence

The Supreme Court emphasised that the consent of a trafficking victim is irrelevant when traffickers use coercion, threats, force, deception, fraud, abuse of power or exploitation of vulnerability. The bench observed that once the elements of trafficking are established, claims that the victim consented cannot be used as a defence.

In the case of children, the court stated that consent is legally irrelevant regardless of whether any coercive means were used. The focus, it said, must remain on the actions and intentions of traffickers rather than the conduct of victims.

Awareness of sex work does not negate victimhood

The court further observed that a person's awareness of being employed in the sex industry does not automatically disqualify them from being recognised as a trafficking victim. Many victims may have initially agreed to work based on false promises or deceptive information, only to find themselves trapped in exploitative conditions.

According to the bench, trafficking victims can continue to be victims even when they are aware of the nature of the work, particularly if coercion, deception or abuse of vulnerability played a role in bringing them into the situation.

Article 23 provides broad protection against trafficking

Referring to Article 23 of the Constitution, the court said the provision prohibits trafficking in human beings, begar and all similar forms of forced labour. The judges noted that the constitutional protection applies not only against the State but also against private individuals involved in exploitative practices.

The bench highlighted that courts have consistently interpreted Article 23 broadly to extend protection and benefits to people living under conditions of exploitation.

Rehabilitation essential for long-term protection

The Supreme Court stressed that rescuing trafficking victims alone is not sufficient. Without proper rehabilitation, victims risk returning to the same circumstances that made them vulnerable to exploitation in the first place.

The court said meaningful rehabilitation is a constitutional requirement under Articles 21 and 23, as it helps restore dignity, freedom and opportunities to survivors. It added that trafficking cases require a holistic legal approach, with investigating officers examining all applicable laws based on the victim's age, the methods used by traffickers and the nature of the exploitation.
(With PTI inputs)