The Kerala High Court has held that a person who knowingly visits a brothel and pays for sexual services can be held criminally liable under the Immoral Traffic (Prevention) Act, 1956, rejecting the argument that customers are outside the scope of the law.
A Division Bench of Justices Raja Vijayaraghavan V and KV Jayakumar gave the ruling while hearing a plea to quash criminal proceedings against a man who was found engaging in sexual intercourse at a brothel.
The plea concerns a case before the Judicial First Class Magistrate Court-I, Njarakkal, in which five accused persons were allegedly found engaging in sexual intercourse at a lodge managed by the sixth accused and another person. They were charged under Sections 3 (keeping a brothel), 4 (earning from prostitution), and 5 (procuring, inducing, or taking person for prostitution) of the Act.
The second accused in the case approached the High Court arguing that the offences could not be applied to him because he was only a customer and did not fall within the purview of the Act.
The Division Bench rejected this interpretation, holding that a customer who knowingly participates in the commercial transaction at a brothel cannot claim immunity from criminal liability.
“A brothel is not merely a place where sexual activity takes place. It is a commercial establishment created and maintained for the systematic exploitation of persons for financial gain,” the Bench observed.
The court said that while the person running a brothel organises and profits from the activity, customers contribute to sustaining the enterprise by creating demand for commercial sexual exploitation. The judges also took note of the circumstances in which sex workers may be brought into or kept in prostitution, including through inducement, coercion, trafficking, or circumstances beyond their control.
“Sexual activity within a brothel necessarily involves two participants. While the brothel owner organises and profits from the enterprise, the customer sustains and perpetuates that enterprise by creating the demand for commercial sexual exploitation. In many cases, the sex worker is persuaded, induced, coerced, or compelled by circumstances, by traffickers, or by those controlling the brothel, to continue in prostitution,” the Bench said.
The court reasoned that limiting criminal consequences only to brothel owners or organisers while completely excluding customers would weaken the purpose of the legislation.
“If penal consequences are confined only to the brothel keeper or organiser while completely excluding the person whose demand fuels the commercial activity, the legislative object of suppressing commercial sexual exploitation would stand substantially diluted,” it said.
The Bench further held that entering a brothel and paying for sexual services makes the customer an active participant in the prohibited commercial transaction, provided the relevant statutory provisions are attracted.
“The customer, by voluntarily entering the brothel and availing the services of a sex worker for consideration, becomes an active participant in the commercial transaction,” the court said.
It rejected the argument that customers should be treated as entirely separate from the unlawful commercial enterprise. “In such circumstances, we find no justification to immunise one of the essential participants in the prohibited activity from criminal liability, if the statutory provisions, properly construed, bring such conduct within their ambit,” the Bench held.