Supreme Court Issues Binding Victim Protection Plan for Trafficking Survivors, Declines to Order OCIA

A bench of Justices J.B. Pardiwala and R. Mahadevan lays down a comprehensive Victim Protection Plan for survivors of trafficking for commercial sexual exploitation, while declining to direct the creation of a new investigative agency.

Twenty-two years after the anti-trafficking organisation Prajwala first approached the Supreme Court, a division bench has delivered a 297-page judgment in Prajwala v. Union of India & Ors. (2026 INSC 609) that converts years of unfulfilled government commitments into binding directions. The Court issued a detailed “Victim Protection Plan” covering every stage from pre-rescue intelligence to repatriation and trial, directed States and Union Territories to designate nodal officers, and gave the Union three months to ensure compliance. On the separate question of constituting an Organised Crime Investigation Agency — a commitment the Union had made in 2015 — the Court declined to issue a writ of mandamus, leaving the decision to the government's discretion. The judgment is authored by Justice J.B. Pardiwala.

How a 2004 Writ Petition Became a 2022 Miscellaneous Application

Prajwala, an anti-trafficking organisation based in Hyderabad, filed Writ Petition (Civil) No. 56 of 2004 alleging that the law governing raids, rescue and rehabilitation of trafficking victims was grossly inadequate. The petition's central complaint was that rescued persons were treated as criminals rather than survivors, that post-rescue rehabilitation was effectively absent, and that without a structured Victim Protection Plan any rescue effort risked being counterproductive.

The litigation did not take an adversarial shape. By an order dated 28 March 2005, the then Solicitor General stated on record that the Ministry of Human Resource & Development intended to formulate a rescue and rehabilitation scheme. A draft protocol was placed on record on 29 July 2005. Consultations with the National Commission for Women, NALSA, and various ministries followed over the next decade.

On 9 December 2015, the Court disposed of the original writ petition by recording two specific commitments from the Union: first, that the Ministry of Home Affairs would set up the Organised Crime Investigation Agency (OCIA) by 30 September 2016 and make it functional by 1 December 2016; and second, that the Ministry of Women and Child Development would constitute an Inter-Ministerial Committee to draft a comprehensive trafficking legislation, with a report expected within six months.

Neither commitment materialised fully. Draft Bills were prepared in 2016, 2017, 2018 and 2021. The 2018 Bill passed the Lok Sabha but lapsed when the 16th Lok Sabha was dissolved. The 2021 Bill awaited cabinet approval and went no further. On the OCIA, the Union instead amended the NIA Act in 2019 to include Sections 370 and 370A IPC in its schedule, and later took the position that the new criminal laws — the Bharatiya Nyaya Sanhita 2023, the Bharatiya Nagarik Suraksha Sanhita and the Bharatiya Sakshya Act — together with the ITPA, made both the OCIA and a separate legislation unnecessary.

Prajwala filed Miscellaneous Application No. 530 of 2022 seeking compliance with the 2015 order. That application is what the Court decided on 29 May 2026.

The Three Questions the Court Set for Itself

The bench framed three issues: whether, on a combined reading of Articles 21 and 23 of the Constitution, victims of trafficking for commercial sexual exploitation (CSE) are entitled to a right to rehabilitation; whether there is a gap or lacuna in the present legislative and institutional framework for rescue, protection, rehabilitation and repatriation; and whether the Court should direct the creation of the OCIA.

On the first question, the Court held that the right to rehabilitation flows from the right to live with dignity under Article 21, read with Article 23's prohibition on traffic in human beings. The judgment analyses Article 23 at length, tracing its constitutional purpose as a guarantee against exploitation, and concludes that the State's obligation extends beyond rescue to active rehabilitation.

On the second question, the Court found that a gap does exist. It examined the Immoral Traffic (Prevention) Act 1956 (ITPA), Section 143 of the BNS 2023, the Juvenile Justice Act, the POCSO Act, the NALSA Scheme on Victims of Trafficking 2015, the Mission Shakti programme and the Anti-Human Trafficking Units (AHTUs). Despite this array of instruments, the Court found that the legislative and institutional response had not yielded concrete positive results on the ground.

The Victim Protection Plan: What It Covers

The Plan, set out in Paragraph 362 of the judgment, is structured across seven stages: pre-rescue, rescue, post-rescue, rehabilitation, repatriation and reintegration, prosecution and trial, and prevention and training. It is directed at all States, UTs and the Union for strict compliance.

A central organising principle of the Plan is the distinction between trafficked victims and voluntary adult sex workers. The Court found that the ITPA conflates sex trafficking with prostitution, drawing all persons — those trafficked against their will, those who were trafficked but continue voluntarily, and those who chose sex work — into the same Section 17 mechanism without differentiation. To address this, the Plan incorporates two specific measures: a threshold inquiry at the outset to identify voluntary adult sex workers and spare them the full rescue machinery, and recognition of the victim's consent as the governing factor in a magistrate's decisions on detention and reintegration. The Court identified circumstances where departure from these principles is warranted — where the victim's safety is at risk or where expressed consent is a product of threat, coercion or undue influence.

On AHTUs, the Court noted that despite 827 units being functional as of January 2025, they are not designated police stations in most States, limiting their role in intelligence gathering. The Plan directs strengthening of AHTUs and improved inter-State coordination.

On shelter homes, the Court found that the merger of Ujjawala Homes and the Swadhar Scheme into the Shakti Sadan Scheme had created a situation where persons with different care needs — mental health patients, domestic violence survivors, trafficking victims requiring substance abuse treatment — were housed together. The Plan addresses conditions in protective homes and mandates sufficient material resources.

The Plan also addresses the problem of mass raids being conducted without adequate planning, which results in only those found at the raid site being prosecuted while procurers, transporters and financiers escape. It directs that rescue operations be preceded by proper intelligence work so that the full trafficking network can be uncovered. The Plan separately covers legal and social support to victims and their access to compensation.

The animating principle the Court articulated is a shift in how victims are treated: “from mere passive objects to be rescued to that of persons with agency” who can make decisions about their own empowerment.

The OCIA: No Mandamus, Discretion Left to the Union

On the OCIA question, the Court declined to issue a writ of mandamus. It found that while the functions originally envisioned for the OCIA are scattered across several existing institutions, there is no gap or lacuna as such that would compel a direction. The Court left it to the Union's discretion to establish such a body if it considers it necessary in the future.

The petitioner had argued that the NIA's empowerment under the 2019 amendment had not produced ground-level change, with the NIA taking up only a few trafficking cases, mostly cross-border ones. The Court acknowledged this but did not find it sufficient to issue a mandatory direction.

Recommendations to Parliament and the Executive

Beyond the binding directions, the Court made several legislative recommendations. It urged the Union to consider introducing a proviso to Sections 7, 8 and 20 of the ITPA clarifying that these provisions — which are routinely invoked against the very victims they are meant to protect — would not apply where the person is or is suspected to be a trafficking victim. It also noted that these provisions do not expressly exclude children from their ambit.

The Court recommended re-examination of the ITPA's mandatory detention model, under which victims in protective homes may be held for one to three years under a magistrate's order, and urged that alternate modes of rehabilitation be made available.

On the BNS, the Court flagged a concerning anomaly: unlike the Palermo Protocol, the BNS retains the ‘means’ element even where the victim is a child, requiring proof of threat, force or deception even in child trafficking cases. The Court said this deviation from the Palermo Protocol needs immediate attention.

The Court also recommended that the Union reconsider two provisions suggested by the 64th Law Commission Report: a specific offence for police officers who compel or seduce a victim in their custody to illicit sexual intercourse, and a rebuttable presumption against a police officer who delays producing a rescued victim before a magistrate.

On cyber-enabled human trafficking (CEHT), the Court found that law enforcement measures continue to lag behind the use of technology by traffickers and urged the Union to issue advisories guiding AHTUs and other stakeholders.

The Court also urged the Union to give earnest consideration to enacting a separate and comprehensive legislation on trafficking covering all forms of exploitation, setting aside the stance it adopted in the present proceedings that existing laws suffice.

Order

The Court issued four additional directions for immediate implementation. All States and UTs must: notify recognised welfare institutions under the explanation to Section 15(6A) ITPA; prepare a State-wide list of social welfare workers eligible for the non-official advisory body under Section 13(3)(b) ITPA; designate the ADGP-level officer heading the Anti-Trafficking Bureau as the Police Nodal Officer under the Victim Protection Plan; and designate the Secretary of the Department of Women and Child Development as the Government Nodal Officer under the Plan.

The Union is responsible for ensuring compliance with these directions within three months of the date of judgment. The Registry is directed to list the matter again in September 2026 for a compliance report. Copies of the judgment are to be sent to all High Courts, the Home Secretary of the Ministry of Home Affairs, and the Principal Secretary of the Ministry of Women and Child Development.

Miscellaneous Application No. 530 of 2022 stands disposed of.