Recently, the Kerala High Court held that even a person availing services in a brothel can be prosecuted under Section 5(1)(d) and Section 7 of the Immoral Traffic (Prevention) Act, 1956. The Court made this ruling while dealing with a petition filed by an accused seeking to quash proceedings. The Court observed that “a person availing the services of a sex worker in a brothel is actually inducing that sex worker to carry on prostitution by paying money and is therefore liable to be prosecuted".
Brief Facts:
The case arose when police received reliable information about prostitution being carried on in a house in Kudappanakkunnu. During a search, officers found the petitioner with a woman in one room and another man with a woman in another. Interrogation revealed that women were being procured and offered to men for money. The petitioner, arraigned as the third accused, was found inside the premises as a customer.
Contentions of the Petitioner:
The counsel for the petitioner argued that the alleged offences under Sections 3, 4, 5(1)(d), and 7 of the Act were not applicable to him. It was contended that Sections 3 and 4 deal with keeping a brothel or living on the earnings of prostitution, which had no nexus with a customer. Regarding Section 7, it was submitted that it applies only to notified areas, and there was no evidence to show that the premises fell within such a zone. The petitioner stressed that a customer cannot be said to “carry on the trade of prostitution” as they only avail services, not run or profit from them. Reliance was placed on judgments of Kerala, Gujarat, Allahabad, and Andhra Pradesh High Courts that took the view that customers cannot be punished under the Act.
Observations of the Court:
The Court rejected these arguments, noting that the legislative intent behind the Act was to curb sexual exploitation and trafficking in all forms. Referring to Section 7, the Court reiterated that the term “person with whom such prostitution is carried on” covers customers as well. It explained, “Sexual exploitation cannot be done singularly. The person who exploits or abuses the prostitute is the person with whom the prostitute carries on prostitution. Thus, the act of immoral traffic cannot be perpetrated without a customer.”
On Section 5(1)(d), the Court further reasoned, “A person availing the services of a sex worker in a brothel is actually inducing that sex worker to carry on prostitution by paying money and is therefore liable to be prosecuted. To term such a person merely as a customer would be contrary to the object of the Act, which is intended to prevent human trafficking and not punish the persons compelled to indulge in prostitution".
The Court expressly disagreed with contrary views of other High Courts, holding that a sex worker cannot be reduced to a product, and that the money paid is not a commercial transaction but an inducement leading to exploitation.
The decision of the Court:
Allowing the petition in part, the Court quashed proceedings against the petitioner for the offences under Sections 3 and 4 of the Act but upheld prosecution under Sections 5(1)(d) and 7.
Case Title: Sarath Chandran vs. State of Kerala
Case No.: CRL.MC No. 8198 OF 2022
Coram: Justice V.G. Arun
Advocate for Petitioner: Adv. C.S.Sumesh
Advocate for Respondent: Adv. Pushpalatha M.K
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