The Supreme Court recently issued detailed guidelines for the rescue, protection and rehabilitation of victims of trafficking for commercial sexual exploitation, holding that such victims have a fundamental right to rehabilitation under Articles 21 and 23 of the Constitution [Prajwala Vs Union of India].

A Bench of Justices JB Pardiwala and R Mahadevan framed a “Victim Protection Plan” to govern all stages of intervention, including pre-rescue, rescue, post-rescue, rehabilitation, repatriation, reintegration, prosecution, trial, prevention and training.

"Victims shall not, at any stage, be treated as criminals or subjected to measures associated with criminal liability. All actors shall at all times accord them the status of a crime victim," the Court further emphasised.

The judgment came in an application filed by Prajwala, an anti-trafficking organisation, in a public interest litigation that began in 2004.

The Court found that despite earlier assurances, no comprehensive framework had been put in place for victim protection.

“To put it simply, it is what existed in 2015 that continues till date,” the Bench said, while rejecting the Union government’s stand that the existing framework was sufficient.

The Court said that there was no clear binding mechanism on how victims are to be handled during and after rescue.

“The lack of a Victim Protection Plan is a serious lacuna that carries the risk of derailing any and all rescue efforts, as there is no clear, guiding, and binding framework for how victims are to be handled, both during and after rescue,” the judgment stated.

It added that in such a situation, protection and rehabilitation becomes arbitrary and contingent on the will or whims of the person charged with their care at the ground level.

The Bench, therefore, held that it had no option but to issue directions under Articles 32 and 142 of the Constitution, detailing the manner in which preventive, protective and rehabilitative measures are to be taken to safeguard the fundamental rights of the victims of trafficking for commercial sexual exploitation.

The victim protection plan now framed by the Court is founded on six principles: primacy of human rights and dignity, non-criminalisation, informed consent, non-stigmatisation and non-discrimination, safety and protection, and privacy and confidentiality.

"All measures taken under this plan shall be implemented in a manner that places the victim’s human rights at the centre. No action taken in the name of care, protection, or rehabilitation shall compromise the dignity of the victims or adversely affect any of their human rights," the Court said.

The Court also held that no measure of care, protection or rehabilitation can be imposed on victims without consent.

“No measure of care, protection, or rehabilitation under this plan shall be imposed upon victims without their free and informed consent, except in exceptional circumstances concerning their safety and protection, and only upon a specific and reasoned finding to that effect,” the judgment said.

The Court further held that victims’ protection cannot depend on whether they cooperate with the police.

“Protection shall not be made conditional upon the victim’s willingness or capacity to cooperate with law enforcement or to participate in any legal proceedings,” it directed.

On rescue operations, the Court directed that a victim’s statement must be recorded only after her safety is ensured and her initial trauma has been overcome.

“The rescued persons shall not be detained over-night at the police station/AHTU under any circumstance for any reason whatsoever,” the Court further directed.

The Bench also directed that adult victims must be produced before the Magistrate, while child victims must be produced before the Child Welfare Committee. If there is any doubt regarding age, the person must be treated as a child and the question of age determination must be left to the Child Welfare Committee.

The Bench also urged the Union government to consider a comprehensive law on trafficking and address cyber-enabled human trafficking.

“Technology has become a tool for traffickers to facilitate, organise, network, transact and evade authorities with greater speed, less cost and more anonymity,” the Court observed.

Other key features of the Supreme Court’s Victim Protection Plan guidelines include:

• Anti-Human Trafficking Units (AHTUs) must be headed by DSP-rank officers.

• Each AHTU must have at least two women police officers.

• AHTUs should include cybercrime officers wherever possible.

• States must notify AHTUs as police stations for the entire district for registering and investigating trafficking cases.

• AHTUs must include officials from multiple departments, including Women and Child Welfare, Labour, Social Welfare, Health and Prosecution.

• AHTUs must maintain databases of traffickers, exploiters, recruiters, buyers, sellers, harbourers, transporters, financiers, victims and vulnerable communities.

• The AHTU database must be updated every month and sent to the ADGP heading the State Anti-Trafficking Bureau.

• Trafficking data must be sent to Crime Records Bureaus, which will forward it to the National Crime Records Bureau.

• Information on trafficking must be immediately escalated to the special police officer under the ITPA, DSP/DCP, Police Nodal Officer and Government Nodal Officer.

• Rescue teams must include recognised NGOs or social workers, along with police and government officials.

• Rescue teams must check concealed spaces, including cubicles, false ceilings, basements, boxes, attics, wardrobes, toilets and nearby areas where victims may be hidden.

• Special care must be taken during rescue of children, transgender persons, persons with disabilities and mentally ill persons.

• Victims must be allowed to collect personal belongings, including clothes, valuables and identity documents, during rescue.

• Victims must not be photographed or videographed during rescue, even if the premises or rescue site is recorded.

• Victims must be kept separate from accused persons immediately after rescue to prevent intimidation or pressure.

• Emergency medical or trauma care must take priority before other procedural steps.

• Police/AHTUs must arrange translators where victims do not understand the local language.

• Women victims’ statements should be recorded by women police officers or, if unavailable, in the presence of a female social worker.

• The Ministry of Home Affairs Anti-Human Trafficking Cell must develop standardised training material, manuals and SOPs for all stakeholders.

• Training must reach district-level officers, not remain limited to national or State-level programmes.

• Identify voluntary adult sex workers and avoid unnecessarily subjecting them to the full rescue machinery. The victim’s consent must guide decisions on detention and reintegration, except where there is threat, coercion, undue influence or risk to safety.

Prajwala was represented by Senior Advocate Aparna Bhat with Advocates Rajkumari Banju, Karishma Maria and Madhulika Mohta.

The respondents were represented by Additional Solicitor General Aishwarya Bhati, Senior Advocates R Bala, SA Haseeb, Ruchi Kohli and Anand Grover.

[Read Judgment]