The Kerala High Court on Tuesday held that a customer who knowingly visits a brothel and avails the services of a sex worker for consideration can be held criminally liable under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956.

The Division Bench of Justice Raja Vijayaraghavan V and Justice KV Jayakumar clarified the legal position while answering a reference made by a Single Bench in view of conflicting rulings by Single Benches.

The Bench held that a customer cannot be treated as being entirely disconnected from the commercial sexual exploitation taking place in a brothel. While the brothel owner organises and profits from the activity, customers sustain the enterprise by creating demand for commercial sexual services, it observed.

It also noted that sex workers may, in many cases, be persuaded, induced, coerced or compelled by circumstances, traffickers or those controlling the brothel to continue in prostitution. Hence, it held that a customer who voluntarily enters a brothel and pays for the services of a sex worker becomes an active participant in the commercial transaction.

The Bench said the commercial exploitation sought to be prohibited under the Act is sustained not only by brothel keepers but also by those who knowingly patronise such establishments. It therefore found no legal justification for excluding customers from criminal liability if their conduct falls within the scope of the statutory provisions.

The Division Bench further held that earlier decisions which held that customers of brothels could be prosecuted under the Act laid down the correct legal position.

While examining the reference, the court considered Sections 5 and 7 of the Act. Section 5 deals with procuring, inducing or taking a person for the purpose of prostitution, while Section 7 deals with prostitution in or in the vicinity of public places.

The court observed that the Immoral Traffic (Prevention) Act is a social welfare legislation aimed at combating commercial sexual exploitation, suppressing trafficking for prostitution and preventing the commercialisation of prostitution.

It noted that a brothel is not merely a place where sexual activity occurs but a commercial establishment maintained for the systematic exploitation of persons for financial gain. According to the court, the activity depends on two essential components — the organiser who facilitates and profits from it, and the customer who pays for and avails the services.

The Bench observed that the sex worker is the victim of this commercial arrangement and that restricting penal consequences only to the brothel keeper or organiser, while completely excluding customers whose demand sustains the activity, would undermine the legislative objective of the Act.

The court therefore held that an interpretation of the law that weakens the effectiveness of social welfare legislation should be avoided when the language of the statute reasonably permits a construction that advances its purpose.
(With LiveLaw inputs)