No Case Against Prostitute's 'Customer' as There is No Legal Provision, Says Court; Experts Unhappy

New Delhi: In a country where prostitution is a crime and legislations penalize individuals who practice flesh trade, the Karnataka High Court recently ruled that there is “no penalty” for a “customer” who uses the services of a prostitute.

A single judge bench comprising of Justice KN Phaneendra quashed a case against an individual who was found in a hotel room indulging in a sexual act with a prostitute and has ruled that since there is “no penal provision” for a customer, there is no case against him.

The petitioner who approached the Karnataka High Court was a customer in a brothel in Bengaluru. After a police raid, the petitioner was arrested. He was recently released on bail.

The petition was filed under Section 482 of CrPC in order to quash the entire proceedings in crime registered under Section 370 of IPC and Sections 3, 4, 5 and 7 of the Immoral Traffic (Prevention) Act.

The 1956 legislation intends to combat trafficking and sexual exploitation for commercial purposes. While prostitution is not an offence, practising it in a brothel or within 200 metre of any public place is illegal.

However, the judge while elaborating on the sections under the ITP Act stated that there was no provision that held the customer guilty.

Section 3 of the ITP Act provides punishment for running a brothel or allowing premises to be used as a brothel, Section 4 provides for punishment of living on the earnings of the prostitution, Section 5 provides procuring, inducing or taking a person for the sake of prostitution and Section 7 applies to prostitution and in or in the vicinity of public place.

“This court has consistently come to the conclusion after analyzing the above said provisions 3, 4 & 5, that the constitution of the offences are not made-out so far as the customers are concerned,” reads the verdict.

But has the arrests of customers under the ITP Act been discouraged even after a slew of verdicts as pointed by the Karnataka judge?

The Durbar Mahila Samanwaya Committee, a collective of 65,000 sex workers, believes that arrests of customers happen regularly and they often get off the hook after paying some money.

“The judge has said that there is no penal provision for a customer, but the most number of arrests after such raids are of customers and the brothel owners. They are also shown the ITP Act. This means there is no ground level awareness,” said Bharati Dey, mentor at Durbar.

Dey further pointed out that similar raids in West Bengal leads to a minimum of “10 to 12 arrests of customers” in a day, out of which around six to seven are released by the police after they cough up some money.

But to this entire verdict also lies the aspect of physical exploitation. Lalita SA, Vice President of Society for Participatory Integrated Development told News18, “There is supply only because there is a demand.”

“Indeed customers have to be held guilty if he is engaging in sex with a minor prostitute or sexually exploiting a sex worker. Often they bring multiple friends and ravage a women. Shouldn’t they be charged in such cases?” asked Lalita.

This aspect was also dealt by Gujarat High Court in 2017 when it was held that a customer at a brothel cannot be held liable for offences under Immoral Traffic (Prevention) Act, but added that he cannot be exempted from charges of physical exploitation.

The order also stated that Section 370 (that deals with physical exploitation) and its amendment following the December 16, 2012, gang rape will not be applicable if sex workers are engaged in prostitution of their own volition.

The law was amended in 2013 and Section 370A was introduced and as per the amendment, a person can be held liable within the mischief of this offence if he either recruits, transports, harbours, transfers, or (v) receives, a person or persons. The amendment came following the Delhi gang rape case.

Even though Justice KN Phaneendra lifted off the chance of imposing any penalty on the customer, he said that “customers encourage prostitution”.

“It is felt by this court that the customer virtually encourages prostitution, and exploit the victim for money, but in the absence of any specific penal provision, it cannot be said that he is liable for any prosecution for the above said offences,” said the judge while quashing the case.