Customers visiting brothels can be punished under Immoral Traffic Act: Kerala High Court

Justices Raja Vijayaraghavan V and K V Jayakumar passed the order.

Reference before bench

The reference came before the bench after conflicting decisions by different single judges of the high court. While earlier rulings held that merely engaging in sexual activity in a brothel was not an offence and that a customer could not be prosecuted under the Act, subsequent decisions had taken the view that customers could also fall within its penal provisions.

At the outset, the court noted that the Immoral Traffic (Prevention) Act, 1956 (ITPA), was enacted with the principal object to prevent the commercialisation of vice and the trafficking of women and girls. It said a brothel was not merely a place where sexual activity took place but a commercial establishment maintained for the systematic exploitation of persons for financial gain.

“The sex worker is frequently reduced to an object of commerce, with the brothel keeper deriving profit from such exploitation. Equally, the commercial activity cannot exist in the absence of those who patronise it,” the court observed. It added that the sexual activity within a brothel necessarily involves two participants where the brothel owner organises and profits from the enterprise, the customer sustains and perpetuates that enterprise by creating the demand for commercial sexual exploitation.

It further noted that the sex worker in many cases is persuaded, induced, coerced or compelled by circumstances, by traffickers, or by those controlling the brothel, to continue in prostitution, adding that the customer is therefore not entirely disconnected from the exploitative commercial activity that the statute seeks to eradicate.

The court held that if penal consequences are confined only to the brothel keeper or organiser and if the person whose demand fuels the commercial activity is excluded, the legislative object of suppressing commercial sexual exploitation would be diluted. “An interpretation that weakens the efficacy of a beneficial social legislation ought to be avoided when the language of the statute reasonably admits of a construction that advances its purpose,” it said.

The court observed that a customer who voluntarily enters a brothel and avails the services of a sex worker for consideration becomes an active participant in the commercial transaction. It said the commercial exploitation that the Immoral Traffic (Prevention) Act seeks to curb is sustained not only by brothel keepers but also by those who knowingly patronise such establishments.

Therefore, the court said, there was no justification to shield an essential participant in the prohibited activity from criminal liability if the statutory provisions, properly interpreted, bring such conduct within their ambit.

The bench thus upheld the interpretation that held that a customer who visits a brothel for the purpose of engaging in sexual activity can also be proceeded against for offences under the provisions of the Act.