From accused to survivor: Karnataka High Court ends decade of injustice for trafficking victim

In a significant judgment, the High Court of Karnataka has quashed criminal proceedings against a female prostitute who had been charged under Section 5 of the Immoral Traffic (Prevention) Act, 1956 (ITPA).

The Court held that the aforementioned provision does not envisage the prosecution of the victim of prostitution, thus ensuring that those ensnared by human trafficking are not re-victimised by the judicial system. While this decision is an emphatic stride toward the protection of trafficking victims' rights, it also underscores a missed opportunity to fully address the prolonged trauma endured by the victim.

The female prostitute, whose identity remains protected to shield her from further societal stigma, found herself ensnared in a decade-long legal imbroglio under Section 5 of the ITPA. This Section is ostensibly aimed at those who procure, induce, or take persons for prostitution. Yet in this case, the victim herself was prosecuted. The prosecution, despite glaring evidence pointing to her victimhood and exploitation, contended that her actions fell within the remit of this provision.

Justice M Nagaprasanna in his judgment delineated that Section 5 of the ITPA targets traffickers and not the trafficked. "The continuation of her prosecution would constitute an abuse of the process of law and result in patent injustice," the Court asserted, emphasising that penalising victims contradicts the ethos of the ITPA, which is fundamentally designed to combat trafficking and safeguard those exploited by it.

This judgment resonates with previous precedents and international human rights frameworks, which distinguish unequivocally between traffickers and their victims. The Supreme Court of India in Gaurav Jain v. Union of India and others ruled that sex-workers should be rehabilitated through self-employment schemes and invited the state to evolve procedures and principles to ensure that sex-workers would also enjoy their fundamental and human rights. Similarly, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children, accentuates the non-criminalisation of trafficked individuals.

Commendable aspects of the judgment

The High Court's decision merits commendation for several compelling reasons:

1. Judicial prudence: By astutely differentiating between traffickers and victims, the judgment provides essential clarity in the application of the ITPA, ensuring that the law targets the true culprits of trafficking.

2. Protection of victims: This ruling reinforces the principle that trafficking victims should be shielded and supported, not subjected to further victimisation through legal penalties. It aligns with both national and international human rights standards.

3. Judicial integrity: The decision underscores the judiciary's role in rectifying systemic misapplications of the law, thereby upholding the sanctity of justice.

Missed opportunities

Despite the relief provided by quashing the charges, the judgment conspicuously falls short in addressing critical aspects:

1. Acknowledgment of trauma: The judgment fails to adequately acknowledge the profound psychological and emotional toll inflicted by ten years of wrongful prosecution. Such prolonged legal entanglements likely exacerbated the victim's trauma, severely hindering her ability to heal and reclaim her life.

2. Redress and compensation: The Court missed a pivotal opportunity to recommend mechanisms for redress or compensation. Recognising and remedying the harm suffered could establish a powerful precedent, signalling a commitment to comprehensive justice.

3. Guidance for law enforcement: The absence of directives to law enforcement agencies on adopting more sensitive, victim-centered approaches is notable. Such guidance is crucial to preventing future misuse of laws intended to protect the vulnerable and ensuring compassionate treatment of victims.

Societal context and implications

The social status of prostitutes in India is marred by stigmatisation, marginalisation, and pervasive discrimination. Women often find themselves coerced into prostitution due to a confluence of adverse circumstances, including abject poverty, lack of education, and predatory trafficking networks. Many are deceived by promises of legitimate employment, only to be thrust into the abyss of sexual exploitation.

This judgment must be contextualised within the broader societal milieu that fosters such exploitation. The pervasive stigma attached to prostitution further alienates these women, exacerbating their vulnerability and limiting their avenues for escape and rehabilitation. Thus, the Court's decision, while a legal triumph, also underscores the need for a more holistic approach to addressing the systemic issues that entrap women in cycles of exploitation.

This judgment fits into a broader movement towards recognising and addressing the rights of trafficking victims within the legal system. Similar progressive stances have been taken internationally. For instance, the European Court of Human Rights in Rantsev v. Cyprus and Russia (2010) underscored the obligation of states to protect victims of trafficking and ensure that their rights are not infringed upon by prosecutorial actions.

In India, the Supreme Court's ruling in Bachpan Bachao Andolan v. Union of India (2011) mandated the protection and rehabilitation of trafficked children, emphasising on the importance of treating victims with dignity and care. These judgments collectively highlight a growing recognition of the need to support, rather than criminalise, those who have suffered from trafficking and exploitation.

Conclusion

The High Court of Karnataka's decision to quash the prosecution of a victim under Section 5 of the ITPA is a pivotal step towards justice. It underscores the importance of distinguishing between traffickers and their victims, aligning with both national and international legal standards. However, the judgment's failure to address the trauma and prolonged suffering of the victim points to a significant gap in the pursuit of holistic justice.

Moving forward, it is imperative for the judiciary to adopt a more empathetic and comprehensive approach. Acknowledging the trauma faced by victims and recommending appropriate redressal measures would not only uphold justice, but also foster a more humane and supportive legal environment for those most vulnerable to exploitation. As legal frameworks evolve, the focus must remain steadfast on protecting and empowering victims, ensuring they are treated with the dignity and respect they deserve.

Nisha Tiwari is an Advocate practicing before the Supreme Court of India and an Associate at the Chambers of Advocate Prashant Bhushan.