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Holds Brothel Customers Can Be Prosecuted Under Immoral Traffic Prevention Act
In a landmark ruling that settles a long-standing legal conflict, the has held that customers who visit brothels for sexual activity can be prosecuted under the (ITPA). A division bench comprising Justice Raja Vijayaraghavan V and Justice K.V. Jayakumar declared that such patrons are active participants in and cannot claim immunity from . The court overruled earlier single-judge decisions that had taken a contrary view.
Settling the Conflict
The reference arose from Crl.M.C. No. 8613/2022 filed by Noushad, the second accused in C.C. No. 2447/2015, who sought against him. The case involved allegations that several accused persons were found engaging in sexual intercourse in a lodge managed by the sixth accused. Noushad contended that as a mere customer, he could not be prosecuted under the ITPA. The single judge, noticing conflicting opinions on the issue, referred the matter to a larger bench.
Earlier, in and , single judges had held that the act of engaging in sexual activity in a brothel does not constitute an offence. However, in , , and , other single judges had taken the opposite view, ruling that customers are covered under the Act. This divergence necessitated the present reference.
Arguments Before the Court
Counsel for the petitioner, , argued that the view in Vijayakumar and Jith Joy represented the correct legal position. He submitted that a customer merely availing services of a sex worker does not fall within the purview of Sections 5 or 7 of the Act.
Per contra, Senior Public Prosecutor contended that
Vijayakumar
was no longer good law in light of the subsequent decisions. He argued that the language of the statute, particularly the phrase
"
"
in Section 7(1), was wide enough to include customers.
Interpreting the Statute
The bench carefully examined the scheme of the ITPA, noting that it is a social welfare legislation enacted to combat
and trafficking. Section 5 punishes any person who procures, induces, or takes another for the purpose of prostitution. Section 7 penalises prostitution in or near public places and specifically targets the
"
."
The court observed that a brothel is not merely a place for sexual activity but a commercial establishment created for the systematic exploitation of persons for financial gain. The sex worker is frequently reduced to an object of commerce, with the brothel keeper deriving profit from such exploitation.
Key Observations from the Bench
The division bench made several pivotal observations that underscore its reasoning:
"The commercial exploitation sought to be prohibited by the Act is therefore sustained not merely by the brothel keeper but also by those who knowingly patronise it."
"In such circumstances, we find no justification to immunise one of the essential participants in the prohibited activity from , if the statutory provisions, properly construed, bring such conduct within their ambit."
"The customer, by voluntarily entering the brothel and availing the services of a sex worker for consideration, becomes an ."
The court emphasized that the very existence of a brothel depends on those who respond to its solicitation. The customer sustains and perpetuates the enterprise by creating .
The Final Verdict
The division bench answered the reference by holding that the interpretation adopted in Mathew , Abhijit , and Sarath Chandran lays down the correct legal position. Consequently, the contrary view in Vijayakumar , Jith Joy , and all decisions following that reasoning stand overruled.
This ruling means that customers can now be prosecuted under Sections 5 and 7 of the ITPA. The case of Noushad will proceed in accordance with this authoritative determination. The judgment serves as a strong deterrent to potential patrons of brothels and reinforces the legislative intent to suppress by targeting both supply and demand.
