POCSO Can Apply In Child Trafficking Cases: SC

A two-judge bench of Justices J.B. Pardiwala and R. Mahadevan on Friday issued several directions to address the concerns of sex workers, while clarifying the legal framework for prosecuting perpetrators and rehabilitating victims.

The apex court said the consent of an adult victim to intended exploitation is irrelevant if any of the listed “means” — such as threat, force, coercion, abduction, fraud, deception, abuse of power, abuse of vulnerability, or giving or receiving payments or benefits to obtain consent — 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 court said a person’s awareness that they are being employed in the sex industry or prostitution does not exclude them from being treated as a victim of trafficking, as they may have been deceived about working conditions that later turned exploitative.

The top court said Article 23 of the Constitution prohibits trafficking in human beings, beggar and all other similar forms of forced labour, and that its ambit is wide. It said the provision strikes at human trafficking in any form and is enforceable not only against the state but also against private individuals engaged in such practices.

The bench noted that while dealing with Article 23 or laws enacted to give effect to it, courts have consistently adopted a liberal interpretation, extending protection and benefits to all those in 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 of the BNS and/or provisions of the ITPA,” it said.

The court said there was no ambiguity in Indian law that every act of sexual exploitation involving a child is non-consensual as a matter of law. It said 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.

“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 order came on a plea filed by NGO Prajwala seeking directions to curb human trafficking and enforce the rights of victims of commercial sexual exploitation.