Kochi: The Kerala High Court here on Tuesday ruled that a person availing a sex worker’s service in a brothel can be prosecuted under the Immoral Traffic (Prevention) Act as he is actually compelling the person to engage in prostitution by paying money. Justice VG Arun observed that a person availing the services of a sex worker in a brothel cannot be termed a “customer,” stressing that sex workers are not commodities and should not be reduced to the status of products in commercial transactions.

In his order, he clarified that the very concept of “customer” involves the purchase of goods or services. In contrast, sex workers — many of whom are victims of trafficking or coercion — cannot be equated with products or ordinary service providers.

The Kerala High Court issued the judgment while considering a case related to Immoral Traffic at a house in Thiruvananthapuram. The person who was arrested by the police, along with a sex worker, approached the court requesting an acquittal from the case.

He was charged under Sections 3 (Punishment for keeping brothel) , 4 (Persons living on the earnings of prostitution), 5(1)(d) (Procuring, Inducing or Taking persons for the sake of prostitution), and 7 (Prostitution in or in the vicinity of public places) of the Immoral Traffic (Prevention) Act, 1956 (ITPA). The petitioner argued that he was merely a customer and therefore not liable under the Act.

Rejecting this argument, the Court observed that exploitation of sex workers is also a crime.

“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,” said the HC.

The court reasoned that the money paid by such individuals is not for a service in the commercial sense but functions as an inducement, compelling the sex worker to engage in prostitution. As such, those who pay to exploit sex workers fall within the ambit of Section 5(1)(d) of the ITPA, which criminalises causing or inducing a person to carry on prostitution.

“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. 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.”

The court allowed the petition in part by quashing the proceedings against the petitioner for the offences under Sections 3 and 4 and permitting the continuation of prosecution for the offences under Sections 5 (1) (d) and 7 of the Act.
(With Live Law inputs)