A brothel ‘customer’ can be charged under ITP Act: What the Kerala HC has said

What is the Immoral Traffic (Prevention) Act, 1956?

The ITP Act was passed on December 30, 1956 to prevent ‘the commercialisation of vices’ and the ‘trafficking of females’.

Section 2 defines a “brothel” to include “any house, room, or place, or any portion of any house, room or place, which is used for purposes [of sexual exploitation or abuse] for the gain of another person or for the mutual gain of two or more prostitutes.” The term “prostitution” is defined as “the sexual exploitation, or abuse of persons, for commercial purposes.”

Section 5 penalises anyone who “procures or attempts to procure a person, with or without their consent, for prostitution purposes.” It also punishes those “inducing persons to go from any place, for prostitution purposes, to become inmates of, or frequent, a brothel.”

Causing or inducing persons to engage in prostitution is punishable with rigorous imprisonment for 3–7 years, along with a Rs 2,000 fine. However, if such an offence is committed against a person’s will or a child, the maximum sentence can be extended to fourteen years or life.

The current case

In the present case, the petitioner was found as a customer in a brothel and arrested.

Accused of offences under the ITP Act’s Sections 3 (keeping a brothel or allowing premises to be used as one), 4 (living on prostitution earnings), 5 (procuring, inducing, or taking persons for prostitution), 7 (punishing prostitution in or around public places), the accused filed a plea before the Chief Judicial Magistrate, Alappuzha, seeking to be discharged.

He contended that since he was a customer, he cannot be implicated for any offence under the ITP Act, added that procedural safeguards for protecting the interests of victims and offenders, weren’t complied with in his case. Section 15(5) and 15(5A) of the ITP Act contain provisions which mandate producing the offender before the magistrate, and their medical examination to determine age, sexually transmitted diseases (if any), and injuries caused due to sexual abuse.

However, the district court rejected the plea and directed that charges be framed against him. The aggrieved petitioner thus moved the Kerala High Court against the lower court’s order.

What the Kerala HC ruled

Noting that the term “procure” isn’t defined in the 1956 Act, the court observed that the word must be understood in the context in which it’s used, bearing in mind the Act’s objective of suppressing immoral trafficking or preventing prostitution.

Although the word ‘procure’ refers to getting possession of or obtaining something, the court construed it to mean those getting or obtaining “domain over a person” for prostitution.

Therefore, the court upheld the lower court order and dismissed the petitioner’s plea, concluding that a consumer also comes within the purview of Section 5.

What the ruling changes

The Kerala High Court ruling has expanded the meaning of the term “procure” in Section 5 of the ITP Act, by adding that a customer will be held liable in addition to pimps/brothel-keepers who “hire” persons for prostitution.

Previously, high courts have expressed differing opinions on whether a brothel customer can be held liable under the ITP Act.

In December 2022, the Kerala HC in Mathew vs the State of Kerala ruled that a customer caught in a brothel can be prosecuted under the ITP Act. “Section 7(1) of the Act penalises two types of persons for indulging in prostitution within the areas specified. Those persons are (i) the person who carries on prostitution and (ii) the person with whom such prostitution is carried on,” the HC said, adding thst the act of immoral traffic cannot be perpetrated or carried on without a ‘customer’.

Prior to that ruling, however, the Andhra Pradesh and Karnataka HCs in Goenka Sajan Kumar vs The State Of AP (2014) and Sri Sanaulla vs State Of Karnataka (2017) ruled against prosecuting brothel customers under sections 3-7 of the ITP Act.

So, what does this mean?

Importantly, the Kerala High Court ruling has not held the petitioner guilty under Section 5 of the ITP Act — it has simply held that he can be charged under it. He will now face trial. Notably, the petitioner was discharged of offences under Sections 3, 4, and 7 by the High Court.