The Supreme Court has drawn a close link between migration and human trafficking, which it described as one of the worst forms of human exploitation. A journey in search of dignified livelihood often descends into a nightmare, mostly for women, and even children, the court said.

A Bench of Justices J.B. Pardiwala and R. Mahadevan highlighted how “systemic inequalities transform a survival strategy into a pathway of exploitation”. While not all migration was trafficking, the latter phenomenon rarely occurred in the absence of migration, the court said.

“For a large majority of this country’s population, migration is a survival and livelihood strategy; the structural vulnerabilities that drive such movement also create conditions conducive to coercion and deception… Trafficking cannot be separated from broader migration flows. Rather, it emerges from within them,” Justice Pardiwala said in a 297-page judgment pronounced on May 29, and released during the weekend of May 30-31.

The judgment further addressed the Immoral Traffic (Prevention) Act or ITPA’s failure to accord rights and protections to voluntary adult sex workers. The silence of the statute, Justice Pardiwala observed, has only made the deep social stigma against them louder.

This, the court said, had resulted in voluntary adult sex workers being isolated, marginalised, and unable to access protections that the law otherwise extends to them.

The court said a meaningful starting point would be for the government to recognise the rights of voluntary adult sex workers and provide them adequate protections.

“The rights of sex workers can exist without there being a right to sex work,” Justice Pardiwala wrote.

The court flagged the need for the Union government to re-examine the conflation between sex trafficking and sex work in the legislative framework.

The court said Section 143 of the Bharatiya Nyaya Sanhita requires that for an act of sexual exploitation to amount to trafficking, it has to fulfill the three-tiered framework of act, means, and purpose of the Palermo Protocol. But, on the other hand, all sex work was treated as trafficking under the ITPA.

​End the exploitation: On the Supreme Court judgment, child trafficking

Section 143 mandates that the “act of bringing a person towards prostitution must have been done through one of the specified ‘means’, such as force, coercion, inducement, or deception, for it to constitute trafficking… The ITPA, on the other hand, operates on a fundamentally different logic. The ITPA requires no such ‘means’... Under the ITPA, all prostitution involving third parties is, in effect, treated as trafficking for commercial sexual exploitation, regardless of whether any force, coercion, or inducement was employed,” the court pointed out.

The court also highlighted that the ITPA tends to harass the very victims it was meant to protect. Moreover, the Act does not expressly exclude children from its ambit. Both these factors must be looked into by the legislature, Justice Pardiwala said.

The judgment said the law in India must not insist on establishing the ‘means’ element when the victim is a child in a case of alleged human trafficking.

“The particular physical, psychological and psycho-social harm suffered by trafficked children and their increased vulnerability to exploitation require that they be dealt with separately from adult trafficked persons and therefore, it very clearly, advocates that any evidence of deception, force, coercion, etc., should not form part of the definition of trafficking when the person involved is a child,” Justice Pardiwala stressed.

Noting that trafficking remains largely hidden, and only a small fraction of cases ever comes to the attention of officials, the court sounded the alert on how criminal networks were increasingly using cyberspace to snare potential victims, while the authorities lag behind.

“Cyber-enabled commercial sexual exploitation has created a radical shift in the exploitation landscape by capitalising on the anonymity, accessibility, and interconnectedness of the digital domain to facilitate crimes with unparalleled efficiency and reach,” Justice Pardiwala said.