Two-Judge Bench Overrules Earlier Judgments, Holding Customers as Active Participants in Commercial Sexual Exploitation
In a landmark judgment delivered on August 11, 2026, the Kerala High Court (Division Bench comprising Justice Raja Vijayaraghavan V. and Justice K.V. Jayakumar) has clarified that a person who visits a brothel as a customer and engages in sexual activity can be prosecuted under Sections 5 and 7 of the Immoral Traffic (Prevention) Act, 1956 (ITPA). This ruling overturns earlier conflicting decisions from Single Judges of the Kerala High Court that had excluded customers from the ambit of the Act.
Background:
The question came before the Court in a reference arising from a criminal case (C.C. No. 2447/2015) where the second accused challenged the proceedings against him, contending that as a customer of a brothel, he could not be implicated under the ITPA. Previous Single Judge decisions in Kerala and other High Courts had expressed divergent views, with some courts holding that mere customers of brothels were not punishable under the Act, while others held the opposite.
Statutory Context:
The Immoral Traffic (Prevention) Act, 1956, was enacted to prevent the commercialisation of vice and trafficking of women and girls. Sections 5 and 7 specifically address:
- Section 5: Punishment for procuring, inducing, or taking a person for the purpose of prostitution.
- Section 7: Prohibition of prostitution in certain notified areas and penalty for those carrying on prostitution or permitting premises to be used for prostitution.
Key Findings of the Court:
1. Nature of Commercial Sexual Exploitation:
The Court emphasized that a brothel is not merely a place for sexual activity but a commercial establishment exploiting persons for financial gain. The sex worker is often compelled or induced into prostitution, and the brothel keeper profits from this exploitation.
2. Role of Customers as Active Participants:
Sexual activity in a brothel involves two parties: the brothel keeper who organises and profits, and the customer who creates demand. The Court held that customers are not passive but active contributors who sustain and perpetuate commercial sexual exploitation.
3. Interpretation of "Person with whom such prostitution is carried on" in Section 7(1):
Referring to the decision in Mathew v. State of Kerala, the Court agreed that this phrase is broad enough to include customers, making them liable under Section 7.
4. Scope of "Procure" in Section 5:
The Court adopted the interpretation that "procure" includes obtaining or securing a person for prostitution, which can extend to a customer who induces or causes a sex worker to carry on prostitution by offering monetary consideration, as held in Abhijit v. State of Kerala and Sarath Chandran v. State of Kerala.
5. Overruling Earlier Contradictory Decisions:
The Court overruled prior judgments such as Vijayakumar and Jith Joy, which held that customers are not punishable under the Act. The Division Bench held these interpretations as incorrect and not aligned with the legislative intent.
Impact of the Judgment:
This authoritative ruling strengthens the legal framework to combat commercial sexual exploitation by bringing customers within the ambit of criminal liability. It aligns the Kerala High Court's position with the object of the ITPA, which is to prevent and deter the commercialisation of vice and trafficking.
Legal Experts have noted that this judgment will likely serve as a precedent for other High Courts and lower courts in India, facilitating stricter enforcement against all parties involved in the commercial sex trade, including customers.
Conclusion:
The Kerala High Court's decision signifies a shift towards a comprehensive approach in tackling prostitution-related offences, emphasizing that the demand side of commercial sexual exploitation is equally culpable under the law. This interpretation reinforces the protective intent of the ITPA and aims to disrupt the entire chain of exploitation.
Bottom Line:
Immoral Traffic (Prevention) Act, 1956 - A person visiting a brothel as a customer and engaging in sexual activity can be prosecuted under Sections 5 and 7 of the Act.
Statutory provision(s): Immoral Traffic (Prevention) Act, 1956 - Sections 5, 7
Noushad v. State of Kerala, (Kerala)(DB) : Law Finder Doc Id # 2970478
