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In a sternly worded order passed on Wednesday, the Madras High Court has deprecated the tendency of the police to wantonly treat spas and massage parlours as illegal brothels. The Court was prompted to make pertinent observations on this aspect given that,
“In recent times, this Court [has] witnessed a flurry of cases challenging the action initiated by the Police against Spas and Massage Centres, its owners and women working as Massage Therapists in these Centres, under the Immoral Traffic (Prevention) Act [ITPA], 1956.“
While quashing a batch of petitions filed challenging such FIRs registered against owners and workers in spas and massage parlours in the city Justice N Anand Venkatesh held,
“Police has no legal right to prevent a health spa being operated by anyone even if the therapy is done by persons of one sex to those belonging to the opposite sex. A health spa, where cross-gender massages is a worldwide phenomenon, there is no legal prohibition and to borrow the wordings of the Hon’ble Supreme Court, except the majoritarian impulses rooted in moralistic tradition which is attempting to impinge upon individual autonomy.“
The Court criticised the practice of carrying out raids at such institutions, citing the possibility of immoral trafficking, without any evidentiary basis and in violation of the mandatory procedures under the ITPA. The Court also went on to note that it has been opined on previous occasions that,
“…such a technique [conducting raids] is against all standards of decency and it shocks the conscience of the Court and such methods instead of preventing the evil are likely to only encourage it.“
Justice Venkatesh warned,
“The more the power, the more must be restraint in using the power. If the Police is permitted to exercise their powers under the Act in this manner, it is possible for the Police to brand any Spa Centre or a Massage Parlour, as a brothel…
… If this power goes unchecked, Spa Centre or a Massage Parlour can be run only under the mercy of a Police Officer. For an extraneous consideration, the Police can brand any Spa or a Massage Centre as a brothel, and even if a brothel is being run in the name of a Spa or a Massage Centre, no action will be taken. This situation is neither good for the society nor to the Police force.”
Before dealing with each individual case, the Court recorded an extensive discussion on the history of laws on prostitution and immoral trafficking.
Referring to various cases on the subject, the Court noted that while the vices involved in its commercialisation have been penalised, the individual act of prostitution itself is not an offence. In any case, it has already been laid down in the In Re: Ratnamala case that the modesty of a prostitute is entitled to equal protection, with that of any other woman.
On the topic of spas and massage parlours, Justice Venkatesh noted that the High Court has already warned the authorities against blindly conducting raids in spas and massage parlours, given that there is no legal prohibition on the operation of such institutions. In the High Court’s 2015 judgment of S Rangaraj and others v The Commissioner of Police, Chennai City, the Court had also directed that there should be a reasonable apprehension of ITPA violations in order to carry out such raids.
Further, the Court emphasised that Section 15 of the ITPA must be followed by the authorities, if at all the raids are to be conducted. Inter alia, this provision requires that the raid be carried out in the presence of two or more respectable inhabitants of the concerned locality where the raided premises are located.
In Rangaraj’s case, the Court had also suggested that a new law be enacted to regulate spas and massage parlours in Chennai. However, Justice Venkatesh lamented that neither was such a law was enacted, nor were mandatory guidelines being followed by the police before raiding spas and massage parlours.
“The judgment confined itself to the law journal, without being implemented,” observed the judge.
The Court was informed, as the hearing progressed, that amendments were being made to the Tamil Nadu District Municipalities Act, 1920 to regulate beauty parlours, spas and massage parlours. In view of this submission, Justice Venkatesh remarked,
“At last, the Government has come out of a long hibernation to regulate this business.profession which is growing at a rapid pace.”
On a broader note, the judge has also opined,
“Whatever be our preconceived notions about a Spa and a Massage centre, due to various factors influencing our thoughts and behavioural patterns, there is always a scope to evolve and start looking at things in a right perspective. Each day, many of us unintentionally place limitations on ourselves by way of our conditioned mind. What we perceive as a purely natural reaction may actually be creating limitations for us and take away our inherent ability to empower ourselves. It’s time we get out of that conditioning and look at the science and real purpose behind Massage and Spa Centres.“
Before parting with the case, the Court emphasised that the Magistrate authorities must also be circumspect in dealing with false cases registered against spas and massage parlours, when the police have not complied with the ITPA procedures.
“It is high time that the Magistrates deal with these types of cases with more sensitivity and ensure that genuine Spas and Massage Centres are not labeled as brothels. Even at the time when the victims are produced before the Court along with the case diary, the Magistrate must ensure that the Police have followed the mandatory requirements under Section 15 of the said Act. This will go a long way in preventing the Police from misusing the powers under the Act, against the Spas and Massage Centres.“
All the FIRs challenged before the Court were quashed on finding them to be a colourable exercise of power and a legal abuse of process.
In one of the cases, which involved the illegal detention of an Indonesian woman who had come down to India to work in a spa, the Court also directed the state to pay a compensation amount of Rs.2,50,000 for her loss of personal liberty and reputation.
In this case, the Court was informed through advocate VBR Menon that not only was the woman illegally detained for over twenty days, but various confiscated valuables belonging to her were also not returned before she was constrained to leave the country after her release. Further, the case was registered by the police without informing the Indonesian embassy, contrary to legal obligations. Therefore, the judge ordered the payment of the compensation amount through the Indonesian embassy within four weeks.