KOCHI: The Kerala High Court has held that brothel customers can also be prosecuted under provisions of the Immoral Traffic (Prevention) Act, 1956. The division bench considered the issue after HC single judges in two separate cases expressed divergent views in this regard.
While one judge held that engaging in sexual activity in a brothel does not constitute an offence, another ruled that a client who visits a brothel to engage in sexual activity is also covered under provisions of the act.
The bench observed that establishment of a brothel is in itself an unlawful commercial venture intended to solicit persons willing to purchase sexual services. The very existence of such an establishment is dependent upon those who respond to that solicitation.
A customer, by voluntarily entering a brothel and availing himself or herself of the services of a sex worker for consideration, becomes an active participant in the commercial transaction, it ruled, adding that the commercial exploitation sought to be prohibited by the legislation is therefore sustained not merely by the brothel keeper, but also by those who knowingly patronise the establishment.
“In such circumstances, we find no justification to immunise one of the essential participants in the prohibited activity from criminal liability, if the statutory provisions, properly construed, bring such conduct within their ambit,” it held.
The bench observed that the activities carried on in a brothel constitute commercial sexual exploitation. Such exploitation is sustained by two indispensable components, namely, the organiser who facilitates and profits from the activity, and the person who avails the services for consideration.
The victim of this commercial arrangement is invariably the sex worker. If penal consequences are confined only to the brothel keeper or organiser while completely excluding the person whose demand fuels the commercial activity, the legislative object of suppressing commercial sexual exploitation would stand substantially diluted.
An interpretation that weakens the efficacy of a beneficial social legislation ought to be avoided when the language of the statute reasonably admits of a construction that advances its purpose, it added.
The court also pointed out that the sex worker is frequently reduced to an object of commerce.
Equally, the commercial activity cannot exist in the absence of those who patronise it. While the brothel owner profits from the enterprise, the customer perpetuates that enterprise by creating the demand for commercial sexual exploitation. The customer is therefore not entirely disconnected from the exploitative commercial activity that the statute seeks to eradicate, the bench held.
Court’s observation
If penal consequences are confined only to the brothel keeper while excluding the person whose demand fuels the commercial activity, the legislative object of suppressing commercial sexual exploitation would stand substantially diluted
HC upholds 61-year-old’s conviction in Pocso case
Kissing a child’s private parts will attract offences under the Protection of Children from Sexual Offences (Pocso) Act, the High Court has held as it upheld the conviction of a 61-year-old man from Chengannur under the Act. “The law does not mandate oral sex or deeper penetration for this clause,” the court said, while dismissing the man’s appeal against his conviction. The Special Court, Pathanamthitta, had awarded the man 20 years of rigorous imprisonment in the case. The prosecution had said that the accused took the victim inside his shop, removed the child’s clothes and kissed his penis. He then forced the boy to smoke ganja, the prosecution said.