Customers in brothels can be prosecuted for inducing prostitution: Kerala High Court

The Kerala High Court recently held that individuals availing sexual services in brothels can be prosecuted under the Immoral Traffic (Prevention) Act, 1956 (ITP Act) since payments made for such services amount to inducing prostitution.

Justice VG Arun emphasised that sex workers cannot be treated as commodities and clarified that the individuals seeking such services were not merely 'customers' but active participants in exploitation of sex workers, facilitating commercial sexual abuse and human trafficking.

"In my view, a person utilising the service of a sex worker at a brothel cannot be termed a customer. To be a customer a person should buy some goods or services. A sex worker cannot be denigrated as a product. In most cases, they are lured into the trade through human trafficking and compelled to offer his/her body to satisfy the carnal pleasure of others. Indeed, the pleasure seeker may be paying money, a large chunk of which goes to the keeper of the brothel. The payment therefore can only be perceived as an inducement to make the sex worker offer his/ her body and act in accordance with the demands of the payer," the Court said.

Hence, the Court held that such persons can be prosecuted under Section 5(1)(d) of the ITP Act which criminalises the act of inducing a person to carry on prostitution.

By way of background, on March 18, 2021, the Peroorkada Police raided a building in Thiruvananthapuram, where they found the petitioner along with a woman lying naked on a bed while another man and woman were discovered in a separate room.

Investigation revealed that two people were managing the brothel, having procured three women for prostitution, collecting payments from clients, and sharing part of the money with the women.

While the others faced charges for running and managing the brothel, the petitioner was also charged under Sections 3 (punishment for keeping a brothel or allowing premises to be used as a brothel), 4 (punishment for living on the earnings of prostitution), 5(1)(d), and 7 (prostitution in or in the vicinity of public places) of the ITP Act.

Aggrieved, the petitioner approached the Court seeking to quash the charges against him.

The petitioner claimed that sex workers canvassed for clients and as a customer, he was merely availing their services.

Relying on earlier High Court rulings, he argued that his conduct did not amount to engaging in any trade or business related to prostitution, not even procuring or inducing the sex workers. Thus, he could not be held liable under any of the charges invoked against him, it was argued.

However, the senior public prosecutor countered by stating that the applicability of the charges against him must be determined in light of the evidence before the trial court.

The Court after hearing the submissions observed that while Sections 3 and 4 target brothel keepers and those living off earnings of prostitution, the core issue in this case was whether availing sexual services at a brothel would attract the offence under Section 5(1)(d).

It clarified that payment for sexual services could not be treated as a mere transaction but one that effectively constituted inducement as it compelled the sex worker to carry on prostitution thereby, falling within the scope of Section 5(1)(d).

"Thus, 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 for the offence under Section 5(1)(d) of the Act. In that view of the matter, if the inducer is termed as a customer that 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 held.

In conclusion, the Court quashed proceedings against the petitioner under Sections 3 and 4 but upheld prosecution under Sections 5(1)(d) and 7 of the ITP Act.

Advocate CS Sumesh appeared for the petitioner.

Senior Public Prosecutor Pushpalatha MK represented the state.

[Read Order]