I. Introduction

Child trafficking, as per the United Nations Office on Drugs and Crime (“UNODC”), is the exploitative use of children, regardless of their consent. According to the NCRB Report of 2024, more than 6,000 victims were identified in India, of which 2,297 were children, and more than 28,500 globally. It is among the largest illegal trades in the world, projected to overtake even the arms and drug trades. Detected victims have risen by 25 percent across the pandemic years.

A. Indian Statutory and International Framework

In India, Article 23(1) prohibits human trafficking and Article 39(f) guarantees children “conditions of freedom and dignity”; these are attempted to be effectuated primarily through the Immoral Traffic (Prevention) Act, 1956 (“ITPA”), which addresses trafficking for commercial sexual exploitation, a negligible part of which deals with minors. Other statutes also apply. The Bhartiya Nyaya Sanhita (“BNS”) defines and penalises trafficking under Sections 143 and 144, with additional punishments for child trafficking, while Sections 98 and 99 criminalise the sale and purchase of children for prostitution or similar exploitation. The Protection of Children from Sexual Offences Act, 2012 (“POCSO”) complements the BNS provisions by defining a child as anyone below the age of eighteen, and penalising all forms of sexual abuse, harassment, and pornography in Sections 3-15. The Juvenile Justice Act 2015 offers a wider protective framework, penalising the employment of children for begging and their exploitation, prohibiting their sale for any purpose, and addressing their kidnapping and abduction. Internationally, the Palermo Protocol defines and requires the criminalisation of child-trafficking, while the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography directs ratifying nations, including India, to prohibit the sale of children, criminalise all child exploitation, and assert domestic jurisdiction over such cases.

II. ITPA’s Deficiencies

The ITPA, despite its amendments, remains inadequate, as the prevalence of child trafficking in India proves. There exists a glaring absence of a definition for trafficking, despite being a specialised anti-trafficking legislation. Instead, the act conflates trafficking with prostitution, wrongly criminalising sex workers at the expense of addressing child-trafficking. Section 8, which penalises solicitation, is the most invoked provision of the ITPA. This led the 2006  Parliamentary Standing Committee to observe that a “vicious cycle of criminalisation” has been created, where Sections 3, 4, 5 and 6, which deal with the prosecution of traffickers are mostly ignored, and victims are repeatedly arrested, convicted and treated as criminals rather than survivors requiring protection. Even when children are sought to be protected through the Act, keeping the victims’ identities confidential is not listed as a requirement anywhere in the Act. The rife moralism of the Act also shows in its failure to address male and transgender sex workers; the latest amendment sought to make it gender-neutral but did so only nominally. Its punitive nature, moreover, only cements its obsolescence, sitting fundamentally at odds with the rehabilitative intention behind the Act. Penalties for the traffickers are meagre: only 3–7 years of imprisonment for brothel-keeping or trafficking offences. After 2012, the nexus of the ITPA with the POCSO demands examination, as it is the lex specialis on children. Under the latter, a child cannot legally consent; yet the former, in its application, often criminalises children as perpetrators of ‘immoral’ activities. Reading the two together is essential, since the POCSO envisages child-friendly procedures such as special courts, vulnerable-witness deposition centres, and support persons.  Courts must nevertheless clarify an overlap in which the two statutes adopt fundamentally diverging evidentiary standards and rehabilitation mechanisms.

III. Comparative International Standard

In comparison to the ITPA, the Palermo Protocol has established a comprehensive prevention infrastructure to address socio-economic vulnerabilities. Viewed against a child-rights framework, the gap widens further. The Convention on the Rights of the Child (“CRC”) and its Optional Protocols treat the trafficked child as a subject of rights, not an object of morality. The general principles of non-discrimination, best interests, and the right to life, survival and development further illustrate such a difference in the approach adopted by the law. The international system also clearly defines terms such as “sale of children” and “child prostitution”, adopting a more exhaustive understanding of trafficking that looks beyond sex-trafficking to forced labour, organ transfer, and the improper inducement of consent for adoption. There are also strong provisions for victim protection, privacy, compensation and recovery, alongside robust prevention mechanisms, most of which are absent in the ITPA. The absence of a rights-based, child-centred framing shows how the paternalistic ITPA, being a criminal statute, is structurally misaligned with CRC’s and the Optional Protocol on the Sale of Children’s general principles.

IV. Judicial Attempts to Fill the Gap

There is a long history of jurisprudence, however, in which the Indian courts have attempted to fill the gaps left by the ITPA and provide a more comprehensive anti-trafficking framework. The Supreme Court, in 2011, adopted the Palermo Protocol’s definition of trafficking: the recruitment, transport or harbouring of persons by coercion, fraud or abuse of power “for the purpose of exploitation”, which it read to cover sexual exploitation, forced labour, slavery, servitude and the removal of organs. In In Re: Ratnamala and Anr v. Unknown (1962),the Court clarified that the Act targets only the “commercialised vice” of forcing women into prostitution, not prostitution itself. In a similar vein, courts have directed that a distinction be maintained between rescued children and those organising the immoral traffic, and that a detailed rehabilitation and prevention mechanism be developed through the Act for the benefit of the victims. For the pimps and brothel-owners, it was held in Geeta Kancha Tamang v. State of Maharashtra (2009), that the offences of child-trafficking and their sexual exploitation are “prone to repetition” if the owners are allowed to carry on the business of running a brothel.[1] Thus, brothels found to employ trafficked children should be sealed, even if the accused or convict is not the owner of the brothel, which is otherwise required by the ITPA, Section 18. In Prerana v State of Maharashtra (2002), the Court held that trafficked minors are always “children in need of care and protection”, not criminals, and thus deserve due protection and rehabilitation. Budhadhev Karmaskar v. State of West Bengal (2011) produced a Bench with an improved rehabilitation framework. They appointed a panel of NGO activists and lawyers to recommend schemes for trafficking-prevention, dignified conditions for sex-workers choosing to continue in the profession, rehabilitation for those who do not. Although, what must come before rehabilitation is recognition. In Hori Lal v. Commissioner of Police, Delhi and Ors. (2002),  the Supreme Court necessitated a detailed police protocol for missing children: press publication of photographs within a week, publicity at transport hubs, immediate neighbourhood and school inquiries, hue-and-cry notices within a month, and transfer of any child found to a children’s home with medical care. In Pinki v State of Uttar Pradesh and Ors. (2025), the Supreme Court ordered the closure of all hospitals where infant trafficking has taken place and barred bail in child-trafficking offences, directing all High Courts, in the same judgement, to complete child-trafficking trials within six months of filing. More recently, the Supreme Court in K.P. Kirankumar v. State by Peenya Police (2025) held that the evidence of minor victims in cases of trafficking and commercial sexual exploitation should be viewed with a lens of ‘sensitivity and latitude’, making such credible testimonies admissible even in the face of minor inconsistencies. In sum, these judgements have interpreted the ITPA’s scope, critiqued its enforcement, and urged a victim-centric procedure; yet even with such jurisprudence, the Act has proved inadequate. Courts still have not addressed gender neutrality, assuming the victims of child-trafficking and forced prostitution to be solely women, as is illustrated by the prescription of women police officers in the case of Hori Lal (2002). A case can be made to read POCSO’s gender neutral character into the ITPA’s protection for children.  Further, the bodies monitoring child-trafficking are also not effective, as there are multiple allegations of underreporting against them despite showing a 27 percent yearly increase in child trafficking; this is only furthered by the fact that these are only those numbers which are picked up by the Anti-Human-Trafficking Units.

V. A Bill That Repeats the Same Mistakes

Attempts to address such inadequacies and ineffectiveness have led to the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill. However, the Bill unfortunately widens criminal offences without improving safety, imposes mandatory reporting that deters victims from seeking help, and reproduces the ITPA’s punitive and gendered approach. The funding and compensation framework is discretionary, limited and inadequate. The Special Rapporteur on violence against women has also denounced the Bill, labelling it incompatible, for similar reasons, with the international standards set out by the UN on both child-trafficking and violence against women. Finally, the Bill also violates the norm of institutionalisation as a last resort under the CRC framework by mandating it for the victims it governs. All in all, child-trafficking regulation in India remains insufficient, whether through dedicated legislation like the ITPA, judicial expansion, or new Bills that reinforce the same stigmatisations and inadequacies.

[1] Geeta Kancha Tamang v State of Maharashtra, Criminal Application No 940 of 2009 in Criminal Appeal No 858 of 2009 [7].

Apala is a fifth-year law student at Jindal Global Law School. Her areas of interest are Children’s Rights Law, International law and Environmental Law.