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White Black Legal – International Law Journal · ISSN 2581-8503
AN ANALYSIS OF NEW CRIMINAL LAWS FOR THE PREVENTION AND PROTECTION AGAINEST HUMAN TRAFFCKING IN INDIA ( WITH SPECIAL REFERENCE TO WOMEN AND CHILDREN)
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Abstract
AN ANALYSIS OF NEW
CRIMINAL LAWS FOR THE PREVENTION AND PROTECTION AGAINST HUMAN TRAFFICKING IN
INDIA (WITH SPECIAL REFERENCE TO WOMEN & CHILDREN)
AUTHORED BY - AYUSHI SONI
Research Scholar
School of Law, Apex University, Jaipur
CO-AUTHOR - DR. GAWARAJA SUTHAR
Apex University, Jaipur
Abstract
Human
trafficking remains one of India’s serious violations of dignity, liberty and
equality, with women and children facing exposure to sexual exploitation,
forced labour, forced marriage, domestic servitude, begging and organ removal.
The Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA), brought
into force on 1 July 2024, recast the response after the repeal of the Indian
Penal Code, 1860 and the Code of Criminal Procedure, 1973. This article
examines whether these enactments improve prevention, prosecution and survivor
protection. It analyses BNS sections 143 and 144, the organised-crime offence
in section 111, BNSS classifications, victim compensation, witness protection
and electronic proceedings, and the role of the Immoral Traffic (Prevention)
Act, 1956, the Protection of Children from Sexual Offences Act, 2012 and the
Juvenile Justice (Care and Protection of Children) Act, 2015. Using doctrinal
and analytical methods, the article compares statutory text with constitutional
guarantees under Articles 14, 15, 21 and 23 and the Palermo Protocol’s
act-means-purpose model. It argues that the new laws provide stronger penal
visibility, aggravated punishment and procedural tools, but do not create an
integrated, gender-responsive and child-centred protection regime. The
requirement to prove a means element even in child trafficking, the narrow
focus of section 144 on sexual exploitation, fragmented institutional responsibility,
limited trafficking-specific compensation and risks of coercive rescue remain
concerns. The article concludes with a rights-based reform framework centred on
non-criminalisation, informed consent, privacy, specialised investigation,
restitution, rehabilitation, reintegration, accountability and outcome data.
Keywords: Human
trafficking; Bharatiya Nyaya Sanhita; Bharatiya Nagarik Suraksha Sanhita;
women; children; victim protection; rehabilitation; organised crime; India.
1.
Introduction
Human
trafficking is a crime of movement, control and exploitation, but it is also a
continuing violation of personhood. A person may be recruited through a
fraudulent employment promise, transported within the country, confined in a
brothel, compelled to work without wages, forced into a marriage, used for
begging, or exploited through digital platforms. The absence of an
international border does not reduce the seriousness of the harm. In India,
trafficking is often enabled by poverty, caste and gender discrimination,
displacement, unsafe migration, family violence, lack of documentation,
unemployment, disasters and conflict. These conditions do not cause trafficking
in a simple or deterministic sense; they create a field of vulnerability in
which traffickers can profit from another person’s constrained choices.
Women
and children experience this crime in distinctive ways. Women may be targeted
for commercial sexual exploitation, forced marriage, domestic servitude,
agricultural or construction labour, or exploitation in informal economies.
Girls may be recruited through acquaintances, relatives, online contacts or
false offers of education and employment. Boys are also trafficked,
particularly for labour, begging, petty criminality and hazardous work. A
gender-responsive analysis must therefore recognise the disproportionate sexual
and reproductive harms suffered by women and girls without reducing trafficking
law to prostitution alone. A child-centred analysis must recognise that
children’s dependency, age, lack of bargaining power and developmental needs
alter the legal and institutional response.
The
commencement of the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik
Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA)
on 1 July 2024 created an opportunity to reassess India’s response. BNS section
143 places trafficking in persons in an express, consolidated provision;
section 144 penalises the knowing engagement of a trafficked child or person
for sexual exploitation; and section 111 brings trafficking within the
definition of organised crime in specified circumstances. The BNSS First
Schedule classifies the principal trafficking offences as cognizable,
non-bailable and triable by a Court of Session. It also contains a
victim-compensation scheme, a state witness-protection obligation and a
provision permitting criminal proceedings in electronic mode. The BSA is
relevant because trafficking investigations increasingly depend upon digital
messages, advertisements, travel records, financial transactions, platform data
and electronic communications.
These
reforms should not, however, be treated as a complete anti-trafficking code.
India continues to work through a combination of the BNS, the Immoral Traffic
(Prevention) Act, 1956 (ITPA), the Protection of Children from Sexual Offences
Act, 2012 (POCSO), the Juvenile Justice (Care and Protection of Children) Act,
2015 (JJ Act), labour legislation, constitutional remedies and administrative
programmes. This fragmented system can be useful when investigators select
every applicable offence, but it can also generate inconsistent identification,
duplication, moralised rescue practices and gaps in rehabilitation. The Supreme
Court’s decision in Prajwala v. Union of
India (2026 INSC 609) is a significant development in this respect. It
recognised the constitutional right of victims of trafficking for commercial
sexual exploitation to rehabilitation and issued a nationwide Victim Protection
Plan until legislative action addresses the existing vacuum.
The
central argument of this article is that the new criminal laws improve the
visibility and seriousness of trafficking as an offence, but they do not by
themselves secure prevention or protection. Their effectiveness depends upon
how the substantive offence is interpreted, how it is combined with POCSO and
the JJ Act, how evidence is collected, and whether survivors are treated as
rights-holders rather than instruments of prosecution. The analysis is
especially important for women and children, because a punitive response that
ignores agency, safety and long-term rehabilitation can reproduce the very
vulnerability that trafficking law is intended to eliminate.
The
article proceeds in twelve parts. It first explains the conceptual and
constitutional framework. It then sets out the research design, maps the
legislative transition, analyses BNS and BNSS provisions, examines the
interlocking protective statutes, studies judicial developments, evaluates
strengths and limitations, and proposes a rights-based reform framework.
2.
Conceptual and Constitutional Framework
2.1 Meaning of human
trafficking
The
dominant international definition is contained in Article 3(a) of the Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational
Organized Crime (Palermo Protocol). It combines three elements: an act, a means
and a purpose. The acts include recruitment, transportation, transfer,
harbouring and receipt. The means include threats, force, coercion, abduction,
fraud, deception, abuse of power or vulnerability, and payments or benefits to
obtain the consent of a person having control over another. The purpose is
exploitation, at least including sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude and removal of
organs. Article 3(b) makes clear that the consent of a victim to the intended
exploitation is irrelevant when a prohibited means has been used. Article 3(c)
removes the means requirement for a child: the recruitment, transportation,
transfer, harbouring or receipt of a child for exploitation constitutes
trafficking even if none of the listed means is proved.
Trafficking
must be separated from migrant smuggling. Smuggling ordinarily involves the
facilitation of irregular entry for a financial or material benefit and is
directed primarily against immigration controls; trafficking is directed
against the person and may occur entirely within one State. The two crimes may
overlap in practice, particularly when an initially consensual migration
arrangement becomes coercive or exploitative. A legally sound investigation
must identify what happened to the person, not merely whether the person
crossed a border.
The
BNS adopts much of the act-means-purpose structure. Section 143(1) covers
recruitment, transportation, harbouring, transfer and receipt for exploitation
through threats, force or coercion, abduction, fraud or deception, abuse of
power, or inducement involving payments or benefits to obtain the consent of a
person having control. The statutory explanation defines exploitation to
include physical exploitation, sexual exploitation, slavery or similar
practices, servitude, beggary and forced removal of organs. The provision also
declares the victim’s consent immaterial. Its architecture is therefore broad
enough to address sexual and non-sexual exploitation, including internal
trafficking.
The
difference concerning children is significant. Section 143 does not expressly
state that the means element is unnecessary where the person trafficked is a
child. On a literal reading, the prosecution may be required to prove an act,
one of the specified means and an exploitative purpose even in a child case.
This is inconsistent with Article 3(c) of the Palermo Protocol and creates an
avoidable evidentiary burden in cases where grooming, family manipulation or
abuse of vulnerability makes the means difficult to isolate. The Supreme Court
identified this anomaly in Prajwala
and urged its removal. Legislative clarification is preferable to leaving the
issue to fragmented judicial interpretation.
2.2 Constitutional
foundations
Article
23(1) of the Constitution prohibits traffic in human beings, begar and other
similar forms of forced labour. It is an enforceable fundamental right and not
merely a directive for future legislation. Article 21 protects life and
personal liberty, which the Supreme Court has interpreted to include dignity,
bodily integrity, privacy, health, legal aid and conditions necessary for a
meaningful life. Articles 14 and 15 require equal protection and permit special
measures for women and children. Article 39(e) directs the State to protect the
health and strength of workers, men and women, and children of tender age from
abuse; Article 39(f) requires opportunities for children to develop in a
healthy manner and in conditions of freedom and dignity.
The
constitutional perspective changes the question asked of criminal law. The
issue is not only whether the State can punish a trafficker. It is whether the
State has taken reasonable and effective measures to identify vulnerability,
prevent exploitation, protect the victim during proceedings, provide legal and
medical assistance, secure compensation and enable a life after rescue. In People’s Union for Democratic Rights v.
Union of India, (1982) 3 SCC 235, the Supreme Court explained that force
for Article 23 is not confined to physical compulsion and may include economic
circumstances that leave a person with no real choice. In Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, and Neeraja Chaudhary v. State of Madhya Pradesh,
(1984) 3 SCC 243, the Court treated identification, release and rehabilitation
as connected obligations in cases of exploitative labour.
The
same logic applies to trafficking for sexual exploitation and other forms of
trafficking. The State cannot regard rescue as the end of its responsibility
when the victim may return to homelessness, debt, stigma, violence or the
control of the trafficker. A criminal law that secures conviction while leaving
the survivor unsafe is constitutionally incomplete. This human-rights
understanding is particularly necessary for women who are often judged through
the lens of sexual morality and for children whose best interests require
welfare, education, family assessment and long-term support.
3.
Research Design, Objectives and Questions
3.1 Objectives
The
article has four objectives. First, it explains the substantive changes
introduced by the BNS and related provisions relevant to trafficking. Second,
it examines the BNSS and BSA as procedural and evidentiary supports for
prosecution and protection. Third, it analyses the interaction of the new laws
with the ITPA, POCSO and JJ Act, with particular reference to women and
children. Fourth, it proposes reforms that measure success through safety,
rehabilitation and reintegration as well as investigation and conviction.
3.2 Research questions
and propositions
The
research is guided by the following questions:
1.
Do the BNS, BNSS and BSA create a
clearer and more effective framework for preventing and prosecuting human
trafficking in India?
2.
Do the new laws provide a sufficiently
gender-responsive and child-centred system of protection?
3.
How should BNS sections 143 and 144 be
read with the ITPA, POCSO, the JJ Act and labour-protection legislation?
4.
What legal and institutional changes
are necessary to convert rescue and prosecution into durable protection and
rehabilitation?
The
article advances three propositions. The first is that the new laws improve
penal visibility and procedural seriousness but leave the protection framework
institutionally fragmented. The second is that the special vulnerability of
children requires a rule that does not make force, deception or coercion a
mandatory constituent of child trafficking. The third is that anti-trafficking
law should be evaluated by a combined measure of prevention, identification,
safety, restitution, rehabilitation, reintegration and accountability.
3.3 Method and scope
The
paper uses doctrinal and analytical methods. It examines the text of the BNS,
BNSS and BSA; the ITPA, POCSO and JJ Act; constitutional provisions; relevant
labour and child-protection statutes; Supreme Court decisions; government
materials; and the Palermo Protocol. It uses a comparative reading of the BNS
and the Palermo Protocol, not a claim that international law automatically
determines the meaning of domestic legislation. The research is limited to the
legal framework available on 16 September 2026. It does not present original
field interviews or a statistical evaluation of conviction rates. Accordingly,
conclusions about implementation are framed as legal and institutional risks
requiring empirical study, not as a substitute for such study.
4.
The Legislative Transition and the New Architecture
4.1 From the IPC and CrPC
to the three Sanhitas
The
BNS replaced the Indian Penal Code, 1860, the BNSS replaced the Code of
Criminal Procedure, 1973, and the BSA replaced the Indian Evidence Act, 1872.
The three laws commenced on 1 July 2024, subject to the commencement
notification and the savings rules concerning pending matters. In trafficking
cases, the change is not a complete break with the past. The post-2013 IPC
framework had already created a broad trafficking offence through sections 370
and 370A. The BNS carries that legislative development into a numbered,
dedicated chapter on offences against the human body and adds the
organisational and technological context of contemporary trafficking.
The
Ministry of Home Affairs reported in February 2026 that cases registered under
the ITPA were 1,639 in 2019, 1,294 in 2020, 1,678 in 2021, 1,497 in 2022 and
2,166 in 2023. These figures are not a measure of all trafficking: they are
offences recorded under a statute focused on immoral traffic, and they exclude
under-reporting and cases registered under other laws. Their value is as a
reminder that a large part of the official response continues to be organised
around sexual exploitation. The same government material reported 827
functional Anti-Human Trafficking Units (AHTUs) in 2026. Institutional
expansion is important, but the number of units does not reveal whether they
are adequately staffed, trained, survivor-sensitive or coordinated with labour
authorities, Child Welfare Committees (CWCs), District Legal Services
Authorities (DLSAs) and health services.
4.2 Statutory matrix
The
following matrix summarises the principal changes and their relevance.
Table 1. Statutory matrix
of the new framework
|
Provision
|
Primary legal function
|
Relevance to women and children
|
Critical issue
|
|
BNS
s. 143
|
Defines
and punishes trafficking for exploitation
|
Covers
sexual exploitation, servitude, beggary, forced labour-related conduct and
organ removal
|
Child
cases still appear to require proof of a means element
|
|
BNS
s. 144
|
Punishes
knowing engagement of a trafficked person for sexual exploitation
|
Targets
exploiters and commercial beneficiaries
|
Operative
text is limited to sexual exploitation
|
|
BNS
s. 111
|
Includes
trafficking within organised crime in qualifying cases
|
Addresses
syndicates, material benefit and serious networks
|
Continuing-activity
and charge-sheet thresholds may complicate new networks
|
|
BNS
ss. 95, 96, 98, 99 and 139
|
Protect
children from being used, procured, sold, bought or exploited for begging or
sexual purposes
|
Adds
alternative or cumulative charges in child cases
|
Requires
coordinated investigation rather than isolated charging
|
|
BNSS
First Schedule
|
Makes
principal ss. 143 and 144 offences cognizable, non-bailable and triable by
Court of Session
|
Supports
serious investigation and trial
|
Schedule
language appears inconsistent with substantive s. 143(7)
|
|
BNSS
s. 396
|
State
victim-compensation scheme and rehabilitation-oriented compensation
|
Allows
compensation even where the offender is not traced or a case ends in
acquittal/discharge and rehabilitation is needed
|
No
detailed trafficking-specific entitlement or automatic payment
|
|
BNSS
ss. 397 and 398
|
Immediate
treatment for listed offences and state witness-protection schemes
|
Protects
health, testimony and safety
|
Trafficking
ss. 143 and 144 are not expressly listed in s. 397
|
|
BNSS
s. 530 and BSA
|
Electronic
proceedings and evidentiary treatment of digital records
|
Useful
for online recruitment, advertisements, communications and financial trails
|
Digital
exclusion, privacy and authenticity risks require safeguards
|
The
matrix shows why the paper treats criminal law as one component of a wider
system. A trafficking FIR may involve several BNS provisions, POCSO, the ITPA,
labour laws and the JJ Act. The legal framework can therefore be protective
when coordinated and harmful when agencies treat the survivor’s immediate
removal as the sole objective.
5.
Substantive Criminalisation under the BNS
5.1 Section 143:
definition, consent and graded punishment
Section
143(1) is the central trafficking provision. It criminalises recruiting,
transporting, harbouring, transferring or receiving a person or persons for
exploitation through one of the listed means. The offence is complete at the
stage of the prohibited conduct for the exploitative purpose; the prosecution
need not wait until the maximum harm has occurred. This is important because
prevention requires intervention before a person is subjected to prolonged
exploitation.
The
explanation to section 143 gives exploitation a broad statutory content. It
includes physical exploitation, any form of sexual exploitation, slavery or
practices similar to slavery, servitude, beggary and forced removal of organs.
The inclusion of beggary and organ removal makes the provision more responsive
to forms that may be invisible when trafficking is equated with prostitution.
The provision is gender-neutral, which allows it to protect women, men, girls,
boys and persons whose gender identity does not fit a binary assumption. Gender
neutrality should not be confused with gender blindness: investigation and
services must still respond to gender-specific risks, including sexual
violence, pregnancy, reproductive health, stigma and the safety of women in
shelters.
The
declaration that the victim’s consent is immaterial is a valuable safeguard.
Traffickers routinely rely on evidence that a person accepted a job, travelled
voluntarily, knew that sexual services or labour would be involved, or
initially accepted money. Consent to travel or to a proposed occupation does
not amount to consent to violence, deception, bondage, sexual abuse,
withholding of wages or forced removal of organs. At the same time, the
provision should be applied without assuming that every adult engaged in sex
work is trafficked. The law must distinguish voluntary adult sex work from
trafficking and protect the dignity and safety of both groups.
Section
143 uses a graduated punishment structure. Trafficking of one person attracts
rigorous imprisonment of seven to ten years and fine. Trafficking of more than
one person attracts rigorous imprisonment of ten years to life and fine.
Trafficking of a child attracts rigorous imprisonment of ten years to life and
fine; trafficking of more than one child attracts a minimum of fourteen years
and may extend to life imprisonment. A person convicted of child trafficking on
more than one occasion is liable to imprisonment for the remainder of natural
life. Where a public servant or police officer is involved, the punishment is
also imprisonment for the remainder of natural life and fine.
The
gradation communicates the heightened gravity of child trafficking and repeated
or official complicity. It can support deterrence and reflect the greater harm
caused by systematic exploitation. Yet severity of punishment cannot substitute
for certainty of detection, careful investigation and survivor support. A
severe offence that is rarely detected or poorly charged may yield less
protection than a moderately severe offence supported by specialised
investigators, financial investigation and protected testimony.
5.2 Section 144:
exploitation of a trafficked person
Section
144 creates liability for a person who knowingly, or having reason to believe,
that a child or person has been trafficked, engages that child or person for
sexual exploitation. The punishment is five to ten years and fine for a
trafficked child and three to seven years and fine for a trafficked person.
This is an important recognition that trafficking is sustained by demand and by
persons who benefit from the exploitation after recruitment or transportation
has occurred.
The
difficulty lies in the narrow operative purpose. Section 143 defines
exploitation broadly, but section 144 speaks only of sexual exploitation. A
person who knowingly uses a trafficked person for forced labour, domestic
servitude, beggary or organ removal may be liable under section 143 as an
actor, abettor or conspirator, under section 146 for unlawful compulsory
labour, under labour or organ-transplant legislation, or under other provisions
depending on the facts. The BNS does not provide an equally clear and
standalone “knowing engagement” offence for each form of exploitation. This
creates uncertainty for beneficiaries who did not recruit or transport the
person but knowingly profit from the exploitative condition.
The
phrase “knowingly or having reason to believe” is capable of a practical
interpretation. Evidence may include the extremely young age of a worker,
confinement, debt, threats, withholding of identity documents, repeated
movement, unusual payments, false records, control by an intermediary,
injuries, restricted communication or the absence of ordinary employment
safeguards. It should not be converted into strict liability merely because the
person worked in a stigmatised sector. The prosecution must establish the
accused’s knowledge or reason to believe through circumstances proved in
accordance with ordinary criminal-law standards.
5.3 Related BNS
provisions protecting children
The
BNS contains provisions that may operate alongside section 143. Section 95
punishes hiring, employing or engaging a child to commit an offence and
expressly states that using a child for sexual exploitation or pornography is
covered. Section 96 addresses inducing a child to go from a place or to do an
act with the intention or knowledge that the child will be forced or seduced to
illicit intercourse. Sections 98 and 99 address selling and buying children for
prostitution. Section 139 addresses kidnapping or maiming a child for purposes
of begging. These provisions are relevant to the many ways in which traffickers
use children as instruments of profit, not merely as objects of sexual
exploitation.
Sections
145 and 146 address habitual dealing in slaves and unlawful compulsory labour.
Section 145 carries a potentially very severe punishment, while section 146
carries imprisonment up to one year, fine or both and is classified as bailable
and triable by any Magistrate. The contrast is striking. Forced labour is a
core form of trafficking under the Palermo Protocol and a reality for women and
children in domestic work, agriculture, brick kilns, construction, hospitality
and informal manufacturing. A low-penalty, bailable offence may be useful for
limited instances of compulsion, but it is insufficient as the principal
response to organised or severe forced labour. Investigators should therefore
connect section 146 with section 143, the Bonded Labour System (Abolition) Act,
1976, the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986,
wage and labour statutes, and the organised-crime provision where the facts
meet its threshold.
5.4 Section 111:
trafficking and organised crime
Section
111 defines organised crime to include continuing unlawful activity involving,
among other things, trafficking of persons, human trafficking for prostitution
or ransom, cyber-crimes, drugs and illicit goods or services. The activity must
be carried out by a person or group acting in concert, singly or jointly, as a
member of or on behalf of an organised-crime syndicate, through violence,
threat, intimidation, coercion or other unlawful means to obtain direct or
indirect material benefit. An organised-crime syndicate is a group of two or
more persons. “Continuing unlawful activity” involves a cognizable offence
punishable with imprisonment of three years or more and, as defined, more than
one charge-sheet in the preceding ten years with cognizance taken by a
competent court.
The
provision is valuable because trafficking is often a business rather than a
single isolated act. Recruiters, transporters, document providers, shelter
operators, advertisers, financiers, corrupt officials and exploiters may form a
chain in which no single actor controls the entire process. Section 111
facilitates a focus on the network, material benefit, property and associated
offences. It also reaches cyber-enabled organisation, which is important where
social-media accounts or encrypted communications are used to recruit or
advertise.
The
threshold may nevertheless create charging questions. A newly formed network
may be detected after one episode and may not yet have more than one
charge-sheet meeting the definition of continuing unlawful activity. A
syndicate may operate through loosely connected individuals whose common design
is difficult to prove. The requirement of material benefit also needs careful
handling where the benefit is indirect, non-monetary or received by a family
member or business. These issues do not make section 111 unavailable; they show
why the ordinary section 143 offence must remain capable of prosecuting a
complete trafficking case without reliance on organised-crime classification.
The
BNSS schedule should also be read with care. The substantive BNS text at
section 143(7) refers to a public servant or police officer involved in the
trafficking of “any person,” whereas the corresponding BNSS First Schedule
entry describes involvement in trafficking of a “child.” This apparent drafting
inconsistency can produce avoidable arguments about whether official complicity
in adult trafficking receives the aggravated punishment. The legislature should
correct the mismatch expressly. Until then, courts should avoid allowing a
schedule heading to silently narrow the operative substantive provision.
6.
Procedural, Evidentiary and Protective Dimensions
6.1 Cognizable,
non-bailable and sessions-triable offences
The
BNSS First Schedule classifies the principal offences under section 143 and
section 144 as cognizable, non-bailable and triable by a Court of Session. This
classification signals that trafficking is a serious offence requiring
investigation without the limitations associated with a non-cognizable
complaint and judicial scrutiny of bail. Sessions trial also reflects the high
maximum punishments and the need for a formal trial forum.
The
classification alone does not guarantee survivor safety. Arrest and custody
decisions must not convert the victim into a suspect merely because the victim
was present in a brothel, workplace, shelter, transit location or online
conversation. Investigators need clear indicators for identifying traffickers,
facilitators and beneficiaries separately from persons who were recruited or
controlled. The presumption that a woman found at a place of sexual
exploitation is an offender can undermine section 143’s protective purpose and
may cause victims to avoid police altogether.
6.2 Victim compensation
under section 396
BNSS
section 396 requires every State Government, in coordination with the Central
Government, to prepare a compensation scheme for victims or dependants who
suffer loss or injury as a result of a crime and require rehabilitation. Where
a court recommends compensation, the DLSA or State Legal Services Authority
(SLSA) decides the amount. The trial court may recommend compensation where a
fine is inadequate or where the case ends in acquittal or discharge but the
victim still requires rehabilitation. Where the offender is not traced or
identified, the victim or dependants may apply to the State or DLSA. The
authority is directed to complete the enquiry within two months and may order
immediate first aid, medical benefits or interim relief.
This
is an important movement away from making compensation dependent upon
conviction. It recognises that the person’s loss continues even when the
investigation fails, the offender absconds or the evidence does not meet the
criminal standard. It also places legal services institutions within the
protection architecture, which is valuable for women and children who may lack
independent assistance.
Section
396 is not, however, a trafficking-specific entitlement. Its operation depends
upon State schemes, applications, recommendations and administrative enquiry.
Trafficking victims may need relocation, identity documents, education, safe
housing, mental-health care, pregnancy and reproductive-health services,
livelihood support, debt relief, family assistance, legal representation and
protection from retaliation over a period of years. A compensation schedule
that treats the harm as a one-time injury may fail to meet these needs. The
provision should be implemented through minimum national standards, direct
survivor assistance, interim payment without testimony conditions and a clear
route for children through the CWC, DLSA and District Child Protection Unit.
Section
396(7) expressly states that State compensation is in addition to certain
payments of fine under specified BNS provisions. The absence of an express
reference to sections 143 and 144 does not necessarily bar compensation under
section 396, but it reveals that trafficking has not been fully integrated into
the statutory compensation design. The position should be clarified to ensure
that restitution, fines, confiscated proceeds and State compensation complement
rather than displace one another.
6.3 Medical treatment and
witness protection
BNSS
section 397 requires all hospitals, public or private, to provide immediate
first aid or free medical treatment for a specified list of BNS sexual offences
and specified POCSO offences. Section 398 requires every State Government to
prepare and notify a witness-protection scheme. Both provisions can assist
trafficking survivors, particularly women and children who may face sexual
violence, pregnancy, injuries, sexually transmitted infections, withdrawal,
trauma and threats. A protected witness may be more willing to give evidence
without repeated exposure to the trafficker.
The
gap is that section 397 does not expressly list BNS sections 143 and 144. A
trafficking survivor may receive free treatment because the conduct also falls
under rape, aggravated sexual assault, POCSO or another listed offence, but the
statute should not require the investigator or hospital to find an additional
offence before acknowledging the medical needs of a trafficking victim.
Treatment should be available on the basis of the person’s condition and the
trafficking indicators, whether or not a sexual offence is ultimately charged.
Witness
protection must also be understood broadly. Physical protection is necessary,
but so are confidentiality, safe transport, relocation, protection from the
trafficker’s associates, child-friendly communication, interpreters,
counselling, protection from media exposure and safeguards against retaliation
within the family. A woman’s continued contact with a dependent child or family
member may be central to her safety, and a child may need a trusted support
person. The plan must be individualised rather than automatically custodial.
6.4 Electronic
proceedings and digital evidence under the BSA
Trafficking
has an important digital dimension. Recruiters may advertise employment,
modelling, marriage or travel opportunities online. Traffickers may control
victims through messaging applications, digital payments, location sharing,
threats to publish images and remote instructions. Evidence may also consist of
ticketing data, call-detail records, CCTV, platform logs, bank transfers,
device metadata and cloud accounts. The BSA’s recognition of electronic and
digital records, together with BNSS section 530’s permission for trials,
inquiries and other proceedings to be held in electronic mode, provides a
modern evidentiary and procedural foundation.
Electronic
proceedings may reduce the need for a survivor to travel across States, support
testimony from a safe location, reduce adjournments and assist coordination in
interstate cases. They are not inherently victim-friendly. A child may not have
a private device or reliable internet. A trafficker may be able to observe a
remote testimony. Screenshots without context may be misread, digital records
may be altered or incompletely produced, and repeated video examinations may
become a new form of re-traumatisation. Courts and investigators therefore
require protocols for authentication, privacy, secure transmission, recording,
non-disclosure and the survivor’s access to counsel and support persons.
7.
The Interlocking Protective Statutes
7.1 Immoral Traffic
(Prevention) Act, 1956
The
ITPA remains an important but limited part of the framework. Its long title
refers to the prevention of immoral traffic, and its core offences concern
brothels, earnings of prostitution, procuring or inducing a person for
prostitution, detaining a person in premises, special police officers, search,
rescue and protective homes. It does not provide a comprehensive definition of
trafficking. The Act’s historical association with the suppression of
commercial sexual exploitation has often led enforcement to treat prostitution
and trafficking as interchangeable.
The
distinction matters for women. A woman may be trafficked for sexual
exploitation, may engage in sex work voluntarily as an adult, may have
experienced both agency and coercion at different times, or may be unable to
communicate a free choice because of violence or dependency. Treating every
adult sex worker as an offender denies agency; treating every person in the sex
sector as free from coercion ignores exploitation. The proper inquiry is
fact-sensitive and centred upon the act, means, purpose, power relationship and
present safety of the person.
In
Prajwala, the Supreme Court explained
that the BNS requires act, means and purpose for trafficking for commercial
sexual exploitation, while the ITPA operates differently and may criminalise
third-party acts in furtherance of prostitution without requiring the same
means. The two laws may therefore apply to different conduct arising from the
same facts. For a child, the ITPA cannot displace the special protections of
the JJ Act and POCSO. The Court held that a child trafficked for commercial
sexual exploitation falls within the category of a child in need of care and
protection and that the CWC governs care, custody, placement, rehabilitation
and restoration.
The
ITPA’s protective-home model must be administered carefully. A shelter can
protect a woman from an immediate trafficker, but long-term confinement without
informed participation may reproduce the loss of liberty associated with
trafficking. Safe custody should be used for safety and care, not punishment or
moral correction. It should be reviewed, time-sensitive, supported by legal
assistance and accompanied by meaningful options for housing, health,
livelihood and reintegration.
7.2 Protection of
Children from Sexual Offences Act, 2012
POCSO
protects every person below eighteen years from sexual assault, sexual
harassment and pornography and establishes Special Courts and child-sensitive
procedures. It contains mandatory reporting obligations, protects the child’s
identity and provides for recording of statements and medical examination in a
manner intended to reduce harm. When trafficking involves sexual acts,
production or possession of child sexual-abuse material, or other sexual
conduct, POCSO may apply in addition to sections 143 and 144 BNS and the ITPA.
POCSO
is important because the child’s consent cannot be used to justify sexual
exploitation. Its special procedure also changes the way evidence should be
collected. The investigator should avoid repeated interviews, arrange a safe
and supportive environment, use appropriate language and ensure medical and
psychological assistance. The fact that a child travelled voluntarily,
communicated with a recruiter or received money does not make the child an
adult decision-maker capable of consenting to sexual exploitation.
At
the same time, a trafficking prosecution should not be reduced to POCSO alone.
POCSO addresses sexual offences; it does not capture the entire trafficking
process, forced labour, debt bondage, transportation, harbouring, financial
benefit or organised criminality. A holistic charge-sheet should identify every
applicable offence and every responsible actor. This is particularly important
in cases where sexual exploitation and forced labour coexist or where digital
recruitment precedes physical exploitation.
7.3 Juvenile Justice Act,
2015
The
JJ Act defines a child as a person who has not completed eighteen years and
creates a child-friendly framework for children in conflict with law and
children in need of care and protection. A trafficked child is ordinarily a
child in need of care and protection. The CWC has authority over care,
protection, treatment, development, rehabilitation and restoration. The Act
provides for individual care plans, child-care institutions, restoration,
aftercare and coordination among police, labour authorities, District Child
Protection Units and non-governmental organisations.
The
JJ Act supplies what the BNS lacks: a welfare pathway after identification. A
child must not be treated as evidence first and a person second. Age
determination, family assessment, health, education, identity, disability,
language, psychological needs and the risk of re-trafficking all require
attention. Restoration to a family is not automatically safe; the suitability
of the parents or guardian must be assessed, and the child’s best interests
must guide the decision. Where restoration is unsafe or unwanted, alternative
care and aftercare must be available.
The
relationship between criminal prosecution and child welfare must be
coordinated. The police must preserve evidence and investigate the trafficking
network while the CWC makes care and placement decisions. A child should not be
placed in a police lock-up, a punitive institution or a protective home
designed for adult women. The absence of adequate registered institutions,
trained counsellors or post-eighteen aftercare can nevertheless turn a
statutory right into a paper promise.
7.4 Labour,
forced-labour, organ and marriage-related laws
Trafficking
for labour requires more than a sexual-exploitation lens. The Bonded Labour
System (Abolition) Act, 1976 addresses abolition, release and rehabilitation of
bonded labourers. The Child and Adolescent Labour (Prohibition and Regulation)
Act, 1986 restricts child and adolescent labour in specified circumstances. The
Transplantation of Human Organs and Tissues Act, 1994 is relevant to illegal
organ removal and commercial dealings. The Prohibition of Child Marriage Act,
2006 may apply where a child is trafficked for marriage. These laws should be
used with the BNS rather than treated as competing silos.
Women
trafficked into domestic work, agricultural labour, factories, construction
sites or forced marriage may not be recognised because they are not found in a
conventional “rescue” location. Labour inspectors, immigration and emigration
authorities, panchayats, transport agencies, schools, hospitals and local
child-protection bodies are therefore part of prevention. The AHTU should have
access to labour, cyber, financial and social-welfare expertise rather than
functioning as a police-only unit.
8.
Judicial Development and the Victim Protection Approach
8.1 Earlier
constitutional and social-welfare jurisprudence
The
Supreme Court has addressed trafficking through public-interest litigation and
constitutional remedies for several decades. In Vishal Jeet v. Union of India, (1990) 3 SCC 318, the Court directed
attention to the prevention of trafficking and the rehabilitation of women and
children subjected to prostitution. In Gaurav
Jain v. Union of India, (1997) 8 SCC 114, the Court stressed the care,
education and social integration of children of sex workers and the need to
prevent intergenerational vulnerability. These decisions established that the
State’s duty is not exhausted by criminalising the exploiter.
The
Court’s labour jurisprudence also informs trafficking law. PUDR recognised the breadth of Article 23, while Bandhua Mukti Morcha and Neeraja Chaudhary treated rehabilitation
as an essential part of release from exploitative labour. In Budhadev Karmaskar v. State of West Bengal,
Criminal Appeal No. 135 of 2010, order dated 14 February 2011, the Court
emphasised the dignity and constitutional protection of sex workers. The common
thread is that the person’s dignity must not disappear behind the label attached
to the work, the place of rescue or the moral reaction of officials.
8.2 Prajwala v. Union of India (2026)
The
judgment in Prajwala v. Union of India,
2026 INSC 609, delivered on 29 May 2026, is central to the present analysis.
The Court held that a combined reading of Articles 21 and 23 establishes a
right to rehabilitation for victims of trafficking for commercial sexual
exploitation. Rehabilitation includes protection from further harm, material
well-being, shelter, medical and psychological care, compensation, vocational
training, reduction of stigma, reintegration and respect for the victim’s
choices. The Court warned that rescue without rehabilitation may return a
person to the same poverty, violence or dependency that made trafficking
possible.
The
Court framed a Victim Protection Plan because it found that the existing vacuum
seriously impaired the fundamental rights of victims and that no Bill or law on
the subject was under active consideration by Parliament at the time of the
judgment. The Plan is structured around the primacy of human rights and
dignity, non-criminalisation, informed consent, non-stigmatisation and
non-discrimination, safety, privacy and confidentiality, the right to
information, individualised care and protection, and the best interests of the
child.
The
non-criminalisation principle is particularly important. A person rescued from
a trafficking situation should not be treated as a criminal merely because of
the place where the person was found or the sector in which exploitation
occurred. Informed consent means that care, protection and rehabilitation
should not ordinarily be imposed without free and informed agreement, except
where a specific and reasoned safety finding justifies temporary departure.
Consent should be capable of withdrawal under lawful procedure. This approach
recognises that safety and autonomy can exist in tension and that an
institution should not resolve the tension through routine detention.
The
Plan also gives operational content to trauma-informed rescue. Authorities
should avoid verbal or physical abuse, unnecessary force, photography and
public exposure; separate alleged offenders from victims; secure belongings and
identity documents; provide access to counsel and translators; conduct
interviews in the presence of a lawyer or case worker; and use female police or
social workers when appropriate. Children must be identified and produced
before the CWC. Protective homes should provide food, health care, counselling,
education, vocational options, recreation, security and an individual care
plan. The Court’s directions also envisage post-release planning, bank
accounts, compensation assistance, safe housing, employment and
non-stigmatising reintegration.
The
Court recommended a multidisciplinary AHTU structure including a senior police
officer, women police officers, a Child Welfare Police Officer, cybercrime
personnel where possible, social workers or NGOs, labour and social-welfare
officials, health personnel and prosecutors. This is consistent with the
reality that trafficking is not simply a police event. It involves labour
markets, family relations, health, education, migration, technology and money.
The
judgment made two points directly relevant to the new criminal laws. First, it
identified the requirement of proving a means element even for child
trafficking under BNS section 143 as an anomaly requiring immediate attention.
Secondly, it explained that a comprehensive law remains necessary for all forms
of trafficking, including forced labour and organ removal, because the present
system is spread across multiple statutes. The Court did not direct Parliament
to enact a law in a particular form, but it used constitutional powers to fill
a rights-threatening vacuum until legislative measures are taken.
9.
Critical Analysis: Strengths and Continuing Gaps
9.1 Strengths of the new
framework
The
first strength is legal visibility. By placing trafficking in section 143, the
BNS gives prosecutors, courts and the public a direct statutory reference
rather than requiring trafficking to be reconstructed through scattered
provisions. The definition recognises multiple forms of exploitation and makes
victim consent immaterial where the offence is established.
The
second strength is aggravated protection for children. The graduated
punishments for one child, multiple children, repeated child trafficking and
official involvement communicate that the exploitation of children is a
distinct constitutional and criminal wrong. Related provisions concerning the
use, sale, purchase and begging of children permit charges that reflect the
actual conduct.
The
third strength is network liability. Section 111 provides a route to treat
qualifying trafficking as organised crime and to investigate material benefits,
syndicate membership, facilitation and property. This can support financial
investigation and confiscation where criminal proceeds are established.
The
fourth strength is procedural seriousness. Cognizable, non-bailable and
sessions-triable classification, together with witness protection and
electronic proceedings, can reduce the practical barriers that previously
allowed traffickers to intimidate victims or exploit fragmented investigations.
Section 396 is especially valuable because it permits rehabilitation-oriented
compensation even when the offender is not traced or a case ends without
conviction.
The
fifth strength is the constitutional direction supplied by Prajwala. The judgment connects the new statutes with a
rights-based model. It makes clear that a prosecution-centred framework is
insufficient and provides concrete principles for rescue, shelter, legal
assistance, health care, consent and reintegration.
9.2 Substantive gaps
The
most serious substantive gap is the child means anomaly. A child may be
trafficked by a parent, relative, known neighbour or online contact through
grooming and manipulation that do not fit neatly into force, threat, abduction,
fraud or deception. Requiring proof of a listed means can make a child’s
protection dependent on the quality of evidence about the trafficker’s technique
rather than the fact of recruitment or movement for exploitation. The law
should align section 143 with Article 3(c) of the Palermo Protocol.
The
second gap is section 144’s narrow focus on sexual exploitation. Demand-side
liability should be available for all forms of knowing exploitation, including
forced labour, domestic servitude, begging and organ removal. A broad section
143 cannot always reach a beneficiary who enters the chain after recruitment.
Reliance on general abetment or labour offences may produce inconsistent
charging and lower punishment.
The
third gap is the weak standalone treatment of forced labour. Section 146’s
one-year maximum and bailable classification do not reflect the seriousness of
severe labour trafficking. The offence must be read with section 143 and the
Bonded Labour Act, but the absence of a coherent forced-labour demand offence
remains a weakness.
The
fourth gap is drafting inconsistency. The substantive BNS section 143(7) and
BNSS schedule appear to differ on whether aggravated official involvement
covers trafficking of any person or trafficking of a child. Criminal statutes
must provide clear notice, and the legislature should resolve the text rather
than leave the issue to litigation.
9.3 Protection gaps for
women
Women
are frequently harmed not only by the initial trafficking but by the manner of
rescue. Public exposure, forced removal from a place of work, separation from
children, detention in a restrictive shelter, disbelief, moral judgment and
repeated questioning can intensify trauma. A woman who has exercised some
choice under constrained economic conditions may be denied the status of a
victim because officials search for a perfectly passive narrative. Conversely,
a woman who appears to have agreed to travel may be wrongly treated as free
from coercion even where debt, violence, confinement or threats control her.
A
gender-responsive response should provide confidential health care, sexual and
reproductive-health services, pregnancy support, trauma counselling, legal
assistance, safe housing, identity documentation, financial inclusion and
livelihood options chosen by the survivor. It should also protect women from
traffickers who are family members or intimate partners, and from social
retaliation after return. Gender-sensitive practice must include transgender
persons and other gender minorities who may experience trafficking through
family rejection, exclusion from work and violence.
The
framework must also distinguish protection from moral policing. The ITPA’s
association with “immoral traffic” can encourage raids aimed at places or
occupations rather than evidence of coercion and exploitation. The rights of
voluntary adult sex workers and the rights of trafficked women are not mutually
exclusive. Protecting one group does not require denying the agency or dignity
of the other.
9.4 Protection gaps for
children
Children
require a separate response because development, dependency and age alter both
vulnerability and proof. A child may not understand the legal significance of
an employment promise or an online relationship. The child may comply with the
recruiter, resist the exploiter, return to the exploiter, or protect a family
member; none of these reactions establishes the absence of trafficking. A
trauma-informed investigator should interpret behaviour in context rather than
as a credibility shortcut.
The
child’s legal pathway should connect the BNS and POCSO prosecution with the JJ
Act’s CWC process. The child needs immediate safety, age assessment, medical
and psychological care, education, a trusted support person, a safe interview,
legal representation, family tracing and a non-punitive placement. Restoration
should follow a suitability assessment and the child’s best interests. For
adolescents who turn eighteen during proceedings, aftercare should prevent an
abrupt loss of shelter, education and income support.
Child
protection also requires prevention beyond criminal law. Schools can identify
unexplained absence, sudden travel or online grooming. Labour and transport
authorities can detect movement into hazardous work. Panchayats and health
workers can respond to early marriage and missing-child indicators. Digital
safety education and platform cooperation are relevant, but they must not
result in surveillance that exposes children’s identities or punishes children
for online contact initiated by an adult trafficker.
9.5 Implementation,
federalism and evidence
Public
order and police are primarily State responsibilities, while trafficking may
cross State and international borders. The Union has developed AHTUs,
inter-agency information systems, bilateral arrangements and central
investigative capacity, but implementation remains dependent on State police,
prosecutors, CWCs, labour departments and local services. A national legal
standard without resources, training and accountability can produce uneven
protection.
Evidence
problems are also distinctive. Victims may be the principal witnesses, yet
trauma, fear, dependency, language and threats affect the timing and form of
disclosure. A case built only around the victim’s testimony is vulnerable to
delay and intimidation. A modern investigation should document the recruitment
advertisement, communications, travel, payments, accommodation, control over
documents, injuries, work conditions, surveillance, device data and financial
benefit. Digital evidence should corroborate rather than replace the victim’s
voice.
Finally,
official data often count FIRs, rescued persons or arrests without tracking
re-trafficking, compensation, shelter duration, education, employment, safety
or survivor choice. A law may appear successful because rescue numbers rise
while people return to the same exploitation. Evaluation must therefore include
both criminal-justice outcomes and rights outcomes.
10.
A Rights-Based Reform Framework
10.1 Comprehensive
legislation or a statutory Victim Protection Plan
India
needs a comprehensive anti-trafficking framework that covers prevention,
identification, investigation, prosecution, victim rights, rehabilitation,
restitution, repatriation, interstate cooperation, international cooperation,
data, institutional duties and accountability. It should apply to domestic and
transnational trafficking, all forms of exploitation, adults and children, and
trafficking connected or unconnected with organised crime. The framework should
implement the principles already articulated in Prajwala rather than create another rescue-only model.
If
Parliament does not immediately enact a separate statute, the Union and States
should notify binding rules and a national minimum Victim Protection Plan under
existing powers. The Plan should have enforceable standards, dedicated budgets,
independent complaints, periodic review and a survivor-participation mechanism.
Protection should not depend on cooperation with the prosecution, and a victim
should receive legal assistance even when the victim does not wish to testify.
10.2 Clarification of BNS
provisions
Four
amendments or authoritative clarifications are necessary. First, section 143
should expressly provide that for a child the act and exploitative purpose are
sufficient; no means element should be required. Secondly, section 144 should
cover knowing engagement of a trafficked person for every statutory form of
exploitation or should be supplemented by a separate demand-side offence.
Thirdly, section 146 should be revised to reflect the seriousness of forced
labour and to distinguish minor compulsion from severe labour trafficking.
Fourthly, the conflict between BNS section 143(7) and the BNSS schedule should
be corrected.
The
law should also expressly protect persons who provide goods or services to a
victim in good faith from being mistaken for exploiters, while imposing
liability on persons who knowingly derive benefit from exploitation. This
balance would protect legitimate service providers without weakening
demand-side accountability.
10.3 Survivor rights and
remedies
Every
identified survivor should receive a written statement of rights in a language
and form the survivor understands. Minimum rights should include
non-criminalisation, privacy, identity protection, informed consent,
independent legal assistance, an interpreter, medical and psychological care,
safe accommodation, family and child support, compensation, restitution,
education, livelihood choice, information about proceedings, complaint
mechanisms and protection from retaliation. The right to leave a shelter should
be balanced against a documented safety assessment and practical alternatives,
not treated as disobedience.
Compensation
should be immediate, accessible and not conditional upon conviction. The DLSA
or SLSA should appoint a trafficking case worker to help with applications,
documents, bank accounts, social-security benefits and court communication. The
State should pursue the trafficker’s property and use fines and confiscated
proceeds for restitution without making the survivor wait for the conclusion of
a long trial.
10.4 Specialised and
accountable institutions
AHTUs
should have minimum staffing, women officers, trained child-protection
personnel, cyber and financial investigators, social workers, translators,
prosecutors and formal links with CWCs, DLSAs, One Stop Centres, Shakti Sadan
facilities, health institutions and labour authorities. Each district should
have a written referral pathway and a named officer responsible for follow-up.
Training should include trauma, gender, disability, caste, migration, LGBTQI+
vulnerability, child development, digital evidence and the distinction between
trafficking and voluntary adult sex work.
Independent
monitoring is necessary because official complicity is a recognised risk.
Allegations of police or public-servant involvement should trigger prompt
investigation, protection of the survivor and supervisory review. Rescue teams
should not be permitted to photograph or publicly identify survivors. Shelter
homes should maintain confidential grievance systems, visitor safeguards, legal
access and regular review of care plans.
10.5 Child-centred
implementation
Every
suspected child victim should be referred promptly to the CWC and receive an
individual care plan. The child should have access to a support person, a
lawyer, medical and mental-health services, education, safe family tracing and
a placement decision based on best interests. The police and CWC must
coordinate without confusing criminal custody with protective care. A child
should never be detained for failing to narrate the trafficking in a particular
way or for leaving a shelter that failed to provide safety.
Age,
disability, language, family relationship and digital access must be recorded
carefully. The State should maintain continuity of support when a child turns
eighteen, especially where trial or rehabilitation remains incomplete. Safe
return requires a risk assessment, not merely a transport arrangement.
10.6 Investigation,
technology and cooperation
Trafficking
investigation should follow the money and the digital trail. A standard
checklist should preserve recruitment advertisements, platform identifiers,
bank accounts, digital-wallet payments, travel records, hotel and workplace
records, CCTV, device data, identity documents, call records and
communications. Requests to online platforms should be timely and
proportionate, with privacy safeguards and judicial oversight where required.
The BSA should be used to corroborate the entire chain rather than to shift the
burden onto a traumatised survivor.
Interstate
and international cooperation should include rapid information exchange, mutual
legal assistance, safe repatriation, document replacement, transfer of evidence
and continuity of rehabilitation. Bilateral arrangements are useful only when
accompanied by a survivor-centred process that prevents detention, forced
return or disappearance from services. The National Investigation Agency and
central coordination mechanisms should support local agencies without
displacing the State’s responsibility to protect the survivor at the point of
identification.
10.7 Data and evaluation
The
Government should publish disaggregated, privacy-protected data on age, gender,
disability, form of exploitation, recruitment method, location, interstate
movement, digital involvement, charges, trial stage, conviction, acquittal,
compensation, shelter, rehabilitation and re-trafficking. Data should
distinguish a person rescued from a person rehabilitated and should not expose
survivors’ identities. Annual evaluation should include survivor feedback and
independent audits of AHTUs, shelters, CWCs and compensation schemes.
11.
Conclusion
The
BNS, BNSS and BSA mark a significant stage in the development of Indian
criminal law on human trafficking. BNS section 143 provides an express and
broad offence, recognises multiple forms of exploitation and grades punishment
according to the number, age and circumstances of victims. Section 144
addresses sexual demand and knowing engagement. Section 111 recognises the
organised nature of many trafficking networks. The BNSS provides serious
offence classification, compensation, witness protection and electronic
proceedings. The BSA gives investigators and courts a framework for dealing
with the digital evidence through which recruitment, control and financial
benefit are increasingly organised.
The
reforms are necessary but not sufficient. A child should not have to prove the
technique by which an adult obtained control over the child before the law
acknowledges trafficking. Section 144 should not leave forced-labour and
non-sexual beneficiaries in a less certain position. Forced labour needs a
proportionate offence. The discrepancy concerning official involvement in BNS
section 143(7) should be corrected. BNSS compensation and medical provisions
need explicit trafficking-sensitive implementation. Above all, the fragmented
legal system must be coordinated through an enforceable victim-protection
framework.
For
women, the central challenge is to protect against sexual and other
exploitation without replacing trafficking with moral policing. For children,
the central challenge is to combine a strong prosecution with the JJ Act’s
care, protection, education and reintegration duties. For both, the measure of
success is not the number of raids or convictions alone. It is whether the
person is safe, believed, legally assisted, medically cared for, compensated,
able to make informed choices and able to live beyond the control of the
trafficker.
The
constitutional promise of Articles 21 and 23 requires that protection be
understood as a continuing duty. The new criminal laws can become an effective
system only when their punitive provisions are interpreted and implemented
through dignity, non-criminalisation, informed consent, privacy, gender
responsiveness, child-centred care and long-term rehabilitation. The next phase
of Indian anti-trafficking law should therefore move from rescue as an event to
protection as a sustained legal relationship between the State and the
survivor.
References
Primary legal sources
1. Constitution
of India, arts. 14, 15, 21, 23, 39(e) and 39(f).
2. The
Bharatiya Nyaya Sanhita, 2023, Act No. 45 of 2023, Ministry of Home Affairs,
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12. People’s Union for Democratic Rights
v. Union of India, (1982) 3 SCC 235.
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21. Convention
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23. Ministry
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https://www.scobserver.in/supreme-court-observer-law-reports-scolr/rehabilitation-as-a-facet-of-article-21-prajawala-v-union-of-india/.
How to Cite This Article
AYUSHI SONI, DR. GAWARAJA SUTHAR, AN ANALYSIS OF NEW CRIMINAL LAWS FOR THE PREVENTION AND PROTECTION AGAINEST HUMAN TRAFFCKING IN INDIA ( WITH SPECIAL REFERENCE TO WOMEN AND CHILDREN)., White Black Legal – International Law Journal, ISSN: 2581-8503, Vol. 4, Issue 1, September 2026, pp. 753-782, DOI Link: https://www.doi-ds.org/doilink/09.2026-27119711/AN ANALYSIS OF NEW CRIMINAL LAWS FOR THE PREVENTIO. Available at: https://www.whiteblacklegal.co.in/public/details/an-analysis-of-new-criminal-laws-for-the-prevention-and-protection-againest-human-traffcking-in-india-with-special-reference-to-women-and-children
Author & Publication Record
Authors: AYUSHI SONI & DR. GAWARAJA SUTHAR
Registration ID: 107096 | Published Paper ID: WBL7096 & WBL7097
Year: Sep- 2026 | Volume: 4 | Issue: 1
Approved ISSN: 2581-8503 | Country: Delhi, India
Page No.: 753-782
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