INTRODUCTION
While Parliament is primarily responsible for making laws, courts are entrusted with interpreting and applying them. However, for more than three decades, the Indian judiciary has stepped in to develop important victim protection measures, such as rescue and rehabilitation homes, custody guidelines, and rules relating to evidence, even though these were not specifically provided for in legislation. A recent example is the Supreme Court’s December 2025 decision, which laid down guidelines on how trial courts should evaluate the testimony of a trafficked child.[1] Such intervention raises the question whether judicial directions in legislative gaps amount to judicial overreach or are constitutionally necessary to make existing protections effective. Article 23 prohibits trafficking.[2] Article 21 protects the right to life with dignity.[3] Yet, despite judicial intervention, only 4.8 per cent of trafficking cases resulted in conviction, indicating that courts alone cannot provide a lasting solution.[4]
WHY THE CURRENT LAW FALLS SHORT?
Although Indian laws address different aspects of human trafficking, they do not provide a comprehensive framework for victim protection. This legislative fragmentation creates gaps that courts have increasingly been required to address:
- The Immoral Traffic (Prevention) Act,1956 [5] primarily focuses on preventing and penalising commercial sexual exploitation but does not provide an adequate framework for victim compensation and long-term rehabilitation.
- The Protection of Children from Sexual Offences Act 2012[6] provides legal protection to children who are victims of sexual offences, but its protection is limited to offences falling within its scope.
- The proposed Trafficking in Persons (Prevention, Protection and Rehabilitation) Bill, 2018, was intended to strengthen the legal framework by establishing an Anti-Trafficking Bureau and a rehabilitation fund. However, although it was passed by the Lok Sabha in 2018, it eventually lapsed after the dissolution of the Lok Sabha in 2019.[7]
The 2024 Trafficking in Persons Report retained India on Tier 2 and identified the lack of an effective national coordination mechanism as a key weakness[8]. An editorial published in The Hindu on 24 December 2025, citing Ministry of Home Affairs data, noted that only 4.8% of trafficking cases resulted in conviction.[9] These gaps explain why judicial intervention has become necessary to make existing constitutional protection effective.
WHY THE CONSTITUTION REQUIRES PROTECTION?
Unlike many welfare rights that courts have read into Article 21, the Constitution clearly and directly prohibits trafficking under Article 23(1). In Bandhua Mukti Morcha v Union of India, the Supreme Court held that simply punishing those who exploit people is not enough. The Court said that the government must also help people rescued from bonded labour rebuild their lives, because the right to live with dignity includes proper rehabilitation and support.[10] Similarly, Francis Coralie Mullin v Administrator, Union Territory of Delhi recognised dignity as a component of the right to life. Read together, Articles 21, 23, and 39I and (f) of the Constitution provide a strong foundation for court-directed victim protection measures. Thus, judicial intervention can be viewed not as replacing legislation, but as giving effect to constitutional guarantees where statutory protection remains inadequate.[11]
HOW COURTS FILLED THE GAP?
In Vishal Jeet v Union of India, the Supreme Court directed States to establish rescue and rehabilitation homes, filling a gap in the existing statutory framework.[12] The Court extended this protective approach in Gaurav Jain v Union of India by directing measures for the protection, education, and rehabilitation of children of prostitutes, including the effective use of juvenile homes.[13] The Court went further in Bachpan Bachao Andolan v Union of India, developing detailed guidelines for rescue, rehabilitation, and reintegration, effectively providing a framework in the absence of a uniform legislative control.[14]
In K.P. Kirankumar @ Kiran v State by Peenya Police (2025), the Supreme Court held that a trafficked child cannot be treated as an accomplice and that the child’s testimony should receive the same consideration as that of an injured victim. It also held that non-compliance with procedural requirements under Section 15(2) of the Immoral Traffic (Prevention) Act, 1956, would not by itself invalidate the prosecution where the statutory requirements were substantially complied with.[15] These directions demonstrate how judicial interventions have sought to protect trafficked children where existing legal mechanisms may otherwise leave gaps in protection.
A COMPARATIVE LOOK: HOW THIS IS DONE BY OTHER SYSTEMS
A comparison with other jurisdictions shows a different approach:
United Kingdom: Section 45 of the UK’s Modern Slavery Act 2015 provides a statutory defence for victims who commit certain offences because of their exploitation.[16] The UK also operates the National Referral Mechanism, which provides an administrative framework for identifying and supporting victims.
United States: The T-visa, introduced under the Trafficking Victims Protection Act, 2000, permits trafficking survivors who assist law-enforcement authorities to remain in the United States and access certain support services. [17]
UN Palermo Protocol: The Protocol requires States to consider measures for the protection and assistance of trafficking victims but leaves considerable scope to States regarding the form and extent of such measures.[18]
These approaches show a clear difference. The UK and US have specific legal mechanisms for protecting trafficking victims, whereas India has often depended on judicial directions to fill gaps in the law. Through such interventions, Indian courts have sought to make Articles 21 and 23 meaningful for victims. Therefore, India needs a stand-alone law laying down clear rights, assigning institutional responsibilities and providing for uniform protection. Until such legislation is enacted, judicial intervention may remain necessary to fill the voids in the current legal framework and to ensure that the constitutional protections are effectively accessible to trafficking victims.
NECESSITY, NOT OVERREACH – A CAVEAT
These decisions cannot simply be dismissed as judicial overreach for three main reasons:
Firstly, the directions of the Supreme Court are grounded in Article 23, which expressly prohibits trafficking in human beings and forced labour. The Court was therefore enforcing an existing constitutional guarantee as recognised in Vishal Jeet v Union of India, rather than creating a new fundamental right.[19]
Secondly, judicial intervention became necessary because existing mechanisms had left significant gaps in victim protection. In Bachpan Bachao Andolan, the Union Government admitted that there was no uniform protocol for rescue in cases of trafficking.[20] Such a gap justified limited judicial directions to make constitutional protection effective where existing mechanisms were inadequate.
Thirdly, the Court’s directions mainly focused on rescue, protection, rehabilitation, and safeguards for trafficked children. They did not permanently replace legislative functions, but focused on rescue, protection, rehabilitation, and safeguards for trafficked children. This limited approach indicates that the court sought to enforce existing constitutional protections without permanently taking over legislative functions.
A WAY FORWARD
In Vishaka v State of Rajasthan, the Supreme Court issued guidelines that remained in force until Parliament enacted the Sexual Harassment of Women at Workplace Act, 2013. A similar approach can be followed in trafficking cases. Court-issued protection guidelines should continue only until Parliament enacts a comprehensive anti-trafficking law.[21]
CONCLUSION
The Supreme Court has been crucial in protecting victims of trafficking where legislative gaps have left them vulnerable. The Court’s intervention can better be seen as a constitutional necessity rather than judicial overreach, as it is based on Articles 21 and 23. Such intervention, however, can only be a stop-gap measure and cannot substitute for comprehensive legislation. Parliament needs to pass a specific anti-trafficking law that addresses prevention, protection, rehabilitation and institutional coordination. Judicial protection is therefore constitutionally justified as a temporary measure, but Parliament must ultimately provide a comprehensive and lasting framework for prevention, protection, rehabilitation and institutional coordination.
Author(s) Name: Shruti Tripathi (CMP Degree College Law Faculty, University of Allahabad)
References:
[1] KP Kirankumar @ Kiran v State by Peenya Police (2025) INSC 1473
[2] Constitution of India 1950, art 23
[3] Ibid art 21
[4] ‘End the Exploitation’ The Hindu (24 December 2025) <https://www.thehindu.com/opinion/editorial/end-the-exploitation-on-the-supreme-court-judgment-child-trafficking/article70429918.ece> accessed 15 July 2026
[5] Immoral Traffic (Prevention) Act 1956 (India)
[6] Protection of Children from Sexual Offences Act 2012 (India)
[7] Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill 2018
[8] 2024 Trafficking in Persons Report (US Department of State 2024)
[9] End the Exploitation (n 4)
[10] Bandhua Mukti Morcha v Union of India and Ors (1984) 3 SCC 161
[11] Francis Coralie Mullin v Administrator, Union Territory of Delhi and Ors (1981) 1 SCC 608
[12] Vishal Jeet v Union of India and Ors (1990) 3 SCC 318
[13] Gaurav Jain v Union of India and Ors (1997) 8 SCC 114
[14] Bachpan Bachao Andolan v Union of India and Ors (2011) 5 SCC 1
[15] KP Kirankumar @ Kiran v State by Peenya Police (2025) INSC 1473 [11].
[16] Modern Slavery Act 2015 (UK), s 45
[17] Trafficking Victims Protection Act of 2000 (US)
[18] UN General Assembly, ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children’ (15 November 2000) Res 55/25, art 6
[19] Vishal Jeet v Union of India and Ors (1990) 3 SCC 318
[20] Bachpan Bachao Andolan v Union of India and Ors (2011) 5 SCC 1
[21] Vishakha and Ors v State of Rajasthan and Ors (1997) 6 SCC 241