It is entirely in the fitness of things that while striking the right chord and so also most robustly according morality the due position that it so richly deserves also, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sarath Chandran vs State of Kerala in Crl.M.C.No.8198/22 and cited in Neutral Citation No.: 2025:KER:59585 that was finally heard on 2.04.2025 and then finally pronounced on 21.07.2025 while dispelling all false notions on no liability of individuals availing sexual services in brothers made it indisputably clear that the individuals who avail sexual services in brothels can be prosecuted under the Immoral Traffic (Prevention) Act, 1956 (ITP Act) since payments made for such services amount to inducing prostitution. There can be thus just no gainsaying that the liability of customers in brothels for inducing prosecution is inescapable and can be prosecuted whenever it comes to the notice of the law enforcing authorities. It was thus also made indubitably clear by the Kerala High Court as it held also that sex workers cannot be treated as commodities and those paying for sexual services were not mere ‘customers’. Very rightly so!
At the very outset and to put things in perspective, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice VG Arun sets the ball in motion by first and foremost putting forth precisely in para 1 envisaging that, “Petitioner is the 3rd accused in Crime No.331 of 2021 registered at the Peroorkada Police Station for the offences under Sections 3, 4, 5(1)(d) and 7 of the Immoral Traffic (Prevention) Act, 1956 (hereinafter referred to as ‘the Act’). The crime was registered on the allegation that on 18.03.2021, based on reliable information that prostitution was going on in house bearing No.TC-21/755 in Kudappanakkunnu, the Inspector of Police along with his subordinate officers conducted search in that building and found the petitioner and a woman lying naked on a bed in one of the rooms. Another man and a lady was found in one of the other rooms and on questioning the women trying to hide inside the kitchen, it came to light that accused Nos.1 and 2 had procured three women and were inviting interested persons for the purpose of prostitution. The keeper of the brothel stated that Rs.2000/- per hour was collected from the persons desirous of indulging in physical relationship with the three women and out of the said amount, Rs.1000/- will be paid to the ladies.”
It is worth noting that the Bench notes in para 5 that, “As contended by the counsel for the petitioner, only a person keeping or managing, or acting or assisting in the management of a brothel can be prosecuted and punished for the offence under Section 3. Likewise, Section 4 is attracted only against a person living on the earnings of prostitution of another person. Though the offence under Section 7 is attracted against the person carrying on prostitution and the person with whom such prostitution is carried on, the objectionable activity should be within the area or the distance mentioned in clauses (a) and (b) of sub-section (1) of Section 7. The question whether the brothel is situated in a notified area or within the prohibited distance has to be decided based on the evidence. The legal position that a customer in a brothel situated in a notified area would fall within the purview of Section 7 and offence will lie against him/her is no longer res integra in view of the erudite exposition in Mathew (supra), extracted below;
“14. The meaning to be ascribed to the words the “person with whom such prostitution is carried on” is significant for this case. Those words will have to be read in conjunction with the definition of the word prostitution. The term prostitution is defined as sexual exploitation or abuse of persons for commercial purposes. Sexual exploitation cannot be done singularly. The person engaged in the act of exploitation is also a person who falls within the term ‘persons with whom such prostitution is carried on’. In other words, the person who exploits or abuses the prostitute is the person with whom the prostitute carries on prostitution. Thus the act of immoral traffic cannot be perpetrated or carried on without a ‘customer’. By using the words ‘person with whom the prostitution is carried on’ in S.7(1) of the Act, I am of the considered view that the legislature has intended the customer also to be brought within the purview of the penal provisions.””
It would be instructive to note that the Bench then hastens to add in para 6 noting so very rightly that, “That leaves only the challenge against the prosecution for the offence under Section 5(1)(d) of the Act. While considering the challenge, one should bear in mind the object of the Act. The Suppression of Immoral Traffic in Women and Girls Act, 1956, the precursor to the present Act, was enacted pursuant to an International Convention held at New York on 9th May, 1950, to which India was also a signatory. The principal object of the Act is to prevent the commercialization of the vice and trafficking among women and girls. The Act was amended in 1978 to rectify certain inadequacies in its implementation. Despite the amendment, enforcement of the Act was not effective enough to deal with the problems of immoral traffic in all its dimensions. Suggestions were therefore made to the Government by voluntary organizations working for women, advocacy groups and various individuals for enlarging the scope of the Act to make the penal provisions more stringent and to provide minimum standards for correctional treatment and rehabilitation of the victims. Based on the suggestions and with intent to widen the scope of the Act to cover all persons, whether male or female, who are exploited sexually for commercial purposes, the Act was again amended in 1986 and renamed as the Immoral Traffic (Prevention) Act.”
It cannot be lost sight of and it would be also worthwhile to note that the Bench points out in para 8 noting that, “Going by the definitions, any place to which a person goes and freely asks for sex workers, selects a person and engages in sexual intercourse with the person so chosen, is a brothel. The act of that sex worker, in having sex with the other person for commercial purposes is prostitution. What remains to be considered is whether availing sexual services at a brothel will attract the offence under Section 5(1)(d) of the Act, extracted below for easy reference;
“5. Procuring, inducing or taking a person for the sake of prostitution.—(1) Any person who—
xxx xxxx xxx
(d) causes or induces a person to carry on prostitution;
shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:
Provided that if the person in respect of whom an offence committed under this sub-section,—
(i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and
(ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years;”
Finally, far most significantly and so also far most remarkably, what really must attract maximum eyeballs of my esteemed readers is that the Single Judge Bench of the Kerala High Court then concludes and encapsulates in para 10 what constitutes the cornerstone of this notable judgment postulating precisely that, “The diametrically opposite view taken by the other High Courts is that a customer in a brothel cannot be penalised under Sections 5 or 7 of the Act. I respectfully disagree with the reasoning in those decisions. In my view, 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. Indeed, the pleasure seeker may be paying money, a large chunk of which goes to the keeper of the brothel. 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. In that view of the matter, if the inducer is termed as a customer that would be contrary to the object of the Act, which is intended to prevent human trafficking and not punish the persons compelled to indulge in prostitution. Here, it is pertinent to note that only Section 7 of the Act is intended to punish the sex worker, that too only when prostitution is carried on in a prohibited area. In the result, the Crl.M.C is allowed in part by quashing the further proceedings against the petitioner for the offences under Sections 3 and 4 and permitting to continue the prosecution for the offences under Sections 5(1)(d) and 7 of the Act.”
In conclusion, there can be absolutely just no prima facie valid reason to ever dare to differ or disagree with what has been held so very clearly, cogently and convincingly in this leading case that customers in brothels can be prosecuted for inducing prosecution. The customers thus definitely deserve to be prosecuted so that a loud and very clear message goes out that customers cannot keep mocking at law with impunity and yet escape without being held accountable in any manner making a complete mockery of our penal laws and criminal justice system! Why should such customers who of their own free will indulge in it be still allowed so easily to go scot free who are the actual abettors and facilitators of such reprehensible crime?
It thus needs no rocket scientist to conclude so very rationally that the Kerala High Court thus very rightly clarified in no uncertain terms without mincing any words whatsoever that the individuals seeking such services were not merely ‘customers’ but were also active participants in exploitation of sex workers, facilitating commercial sexual abuse and human trafficking. So how can still such customers be given a clean chit? How can they be allowed to so freely violate laws with impunity? It thus merits just no reiteration that the right place of such customers who avail sexual services is in jail and this is exactly what has been held also by the Kerala High Court in this leading case! No denying or disputing it in anyway!
Sanjeev Sirohi