Holding that voluntary adult sex workers can’t be ‘rescued’ or detained against their will, the Supreme Court has said consent of adult sex workers must be the primary consideration in taking decisions regarding their rehabilitation, reintegration and placement in protective homes.However, the top court held that cases involving the trafficking of children for Commercial Sexual Exploitation (CSE) can attract charges under the stringent POCSO Act, alongside the relevant provisions of the Bharatiya Nyaya Sanhita and the Immoral Traffic (Prevention) Act.“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… 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,” a Bench of Justice JB Pardiwala and Justice R. Mahadevan said.Acting on NGO Prajwala’s plea seeking stronger measures to curb human trafficking and protect victims of commercial sexual exploitation, the Bench laid down guidelines to combat human trafficking for commercial sexual exploitation and to ensure dignified rehabilitation of survivors.In a landmark verdict aimed at mitigating the concerns of victims of trafficking for CSE, the Bench ordered constituting a nationwide “Victim Protection Plan” for rescue operations, victim identification, rehabilitation, prosecution mechanisms and institutional coordination.Writing the judgment for the Bench, Justice Pardiwala rejected the “flawed assumption” under the Section 17 of the Immoral Traffic (Prevention) Act, 1956 (ITPA) which often treated all persons rescued from prostitution-related situations in the same manner, irrespective of whether they were trafficked, coerced, or voluntarily engaged in sex work.In view of the unjustified abandonment of efforts to formulate a comprehensive plan despite the lacunae in the existing legislative and policy measures, the Bench said it was left with no option but to pass detailed directions in exercise of our powers under Articles 32 and 142 of the Constitution respectively to safeguard the fundamental rights of the victims of trafficking for CSE.“These guidelines would hold the field until the Parliament enacts a law on the subject,” it said.Noting that such a “one-size-fits-all” approach failed to account for the diverse realities of those brought before magistrates, the Bench said, “It is the victim’s life, liberty, and future that the order will determine, and thus it would be incongruous to hold that all of this can be decided without any regard for what the victim wants.”When an adult person was produced before a magistrate under Section 17 of the Act, a threshold inquiry must first be conducted to determine whether the individual was a voluntary adult sex worker and whether she wished to be placed in long-term protective custody.Social workers should assist in this process through a preliminary assessment, but the victim’s own statement must receive primacy, it said. However, the magistrate may depart from the victim’s expressed wishes in exceptional circumstances where release would expose her to a serious safety risk or where the expressed consent appears to be the product of coercion, threats, tutoring, or undue influence for reasons recorded in writing, it added.For adult victims, consent becomes immaterial if traffickers employ threats, force, coercion, abduction, fraud, deception, abuse of power or inducements to facilitate exploitation, it noted.The police must refrain from ‘interfering’ if it is found that the sex worker is an adult participating in the trade with consent and during a raid on any brothel, voluntary sex workers must not be harassed or victimised, it said, emphasising that voluntary adult sex workers should not ordinarily be subjected to rescue and detention mechanisms intended for trafficking victims, unless their explicit consent was involved.