Kerala High Court: In a case examining the applicability of the Immoral Traffic (Prevention) Act, 1956 (‘the Act’) to a person alleged to be a mere customer at a brothel, the Single Judge Bench of Justice V.G. Arun held that while certain charges were inapplicable, others could validly proceed based on the facts and intent of the legislation.
The petitioner argued that the provisions of the Act were not applicable to him, as he was not engaged in prostitution as a trade or business, but was merely a customer at the premises.
Accepting this argument in part, the Court quashed the prosecution under Sections 3 and 4 of the Act, which relate to keeping a brothel and living on the earnings of prostitution, respectively, holding that these provisions did not apply to the petitioner’s role.
However, the Court allowed the prosecution to continue under Sections 5(1)(d) and 7, stating that:
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The petitioner could still be prosecuted for inducing prostitution by paying for sexual services, which constitutes inducement under Section 5(1)(d);
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The continuation of proceedings under Section 7 would depend on whether the brothel was situated in a notified or prohibited area, which would require determination based on factual evidence.
The Court further emphasised that customers who avail sexual services at brothels cannot be seen as passive participants, and such acts contribute to the exploitation the Act seeks to prevent.
The petitioner is the third accused in Crime registered under Sections 3, 4, 5(1)(d), and 7 of the the Act. The case arose from a police raid conducted on 18-03-2021 at a House based on credible information that prostitution was taking place at the premises.
During the search, the police found the petitioner along with a woman, both naked, in one of the rooms. In another room, another man and woman were found, while a third woman was found hiding in the kitchen. Upon questioning, it was revealed that accused 1 and 2 had allegedly procured the women and were arranging customers for the purpose of prostitution. The brothel keeper informed the police that customers were charged Rs. 2,000 per hour, out of which Rs. 1,000 was paid to the sex workers.
The prosecution alleged that the petitioner was one of the customers engaging in sexual activity at the premises.
The petitioner has contended that even if all allegations are accepted at face value, the charges under the Act are not applicable to him. Specifically:
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Section 3 relates to keeping a brothel, which the petitioner did not do.
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Section 4 applies to persons living on the earnings of prostitution, which is not the case here.
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Section 7 requires that prostitution occur in a notified area, which has not been established.
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Section 5(1)(d) pertains to inducing or causing a woman to engage in prostitution, which also does not apply to a mere customer.
The petitioner argued that the provisions of the Act 1956 are not applicable to him, as he was merely a customer at the premises and not involved in the act of prostitution as a trade or business.
The Court acknowledged the contentions raised by the petitioner and clarified the scope of the relevant provisions under the Act:
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Section 3 applies only to persons who keep, manage, or assist in managing a brothel. A mere presence at the premises as a customer does not attract this provision.
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Section 4 is attracted only where a person is found living on the earnings of another’s prostitution. Again, this does not include a customer availing services.
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Section 7, which criminalizes the act of carrying on prostitution in or in the vicinity of notified areas such as public places, schools, places of worship, etc., can apply to both the sex worker and the person engaging in prostitution with them. However, this is subject to proof that the act occurred within a notified or prohibited area as defined under clauses (a) and (b) of Section 7(1).
The Court emphasised that whether the brothel was situated in such a notified area is a matter of evidence. Furthermore, the Court clarified that the legal position is settled, a customer found in a brothel in a notified area may be liable under Section 7, but this determination must be evidence-based.
The Court addressed the petitioner’s challenge to prosecution under Section 5(1)(d) of the the Act and emphasised that the interpretation of this provision must be informed by the object and purpose of the Act.
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The Act originated from the Suppression of Immoral Traffic in Women and Girls Act, 1956, which was enacted pursuant to an international convention held in New York on 9 May 1950, to which India is a signatory.
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The principal aim of the Act is to prevent the commercial exploitation of women and girls through prostitution and trafficking.
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In 1978, the Act was amended to address enforcement gaps, but further inadequacies persisted, especially in tackling the broader dimensions of immoral trafficking.
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As a result, in 1986, the Act was again amended and renamed the Immoral Traffic (Prevention) Act, with the specific intention to:
○ Widen the scope to include both males and females.
○ Make the penal provisions more stringent.
○ Provide standards for correctional treatment and rehabilitation of victims.
○ Target commercial sexual exploitation in all forms.
In light of this background, the Court noted that any prosecution under Section 5(1)(d),which relates to causing or inducing a person to carry on prostitution, must be carefully assessed to ensure it aligns with the purpose of curbing commercial exploitation, rather than punishing mere customers unless specific elements of inducement or coercion are proven.
The Court, after analysing the definitions of ‘brothel’ and ‘prostitution’ under the Act, 1956, clarified that:
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Any place where a person can freely request sexual services, select a sex worker, and engage in sexual intercourse for payment, would fall within the definition of a brothel under the Act.
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The act of the sex worker engaging in sexual activity for commercial consideration constitutes prostitution.
The Court then turned to the core issue in the case—whether a customer availing such sexual services at a brothel can be prosecuted under Section 5(1)(d) of the Act.
The Court noted that while some other High Courts have taken a contrary view, that a customer in a brothel cannot be prosecuted under Sections 5 or 7 of Act 1956, it respectfully disagreed with such reasoning.
The Court reasoned that:
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A sex worker is not a commodity, and cannot be treated as a product or service being “purchased” by a customer.
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In many cases, sex workers are victims of trafficking and coercion, and are forced to engage in prostitution.
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Therefore, a person who pays to engage in sexual acts at a brothel is not merely a passive “customer”, but is in fact inducing the sex worker into prostitution.
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This inducement through payment directly attracts liability under Section 5(1)(d) of the ITPA.
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Allowing such persons to be treated as mere customers undermines the objective of the Act, which is to combat human trafficking and exploitation, not to punish the victims.
[Sarath Chandran v. State of Kerala, 2025 SCC OnLine Ker 6727, decided on 21-07-2025]
Advocates who appeared in this case:
For Petitioner: CS Sumesh, Advocate
For Respondent: Pushpalatha MK, Sr.PP
