Sex worker’s ‘customer’ not liable for trafficking: T HC

Hyderabad: In a significant ruling clarifying the legal liability of ‘customers' in prostitution cases, the Telangana high court has ruled that the mere presence of a person in or around a brothel is not enough to prosecute him under Section 370A(2) of the Indian Penal Code as a customer. The section deals with human trafficking and exploitation of trafficked persons.Delivering a judgment on a batch of over 120 criminal petitions, a division bench of Justices K Lakshman and B R Madhusudhan Rao observed that criminal liability could arise only when there was material indicating that the person engaged a trafficked sex worker with the knowledge or had reason to believe that she had was been trafficked.The petitioners include youngsters studying professional courses, businesspersons, and employees of private firms who were named as accused in prostitution cases registered separately in different police stations across Telangana. While some of them were customers of sex workers, others claimed to be merely present in the vicinity of a brothel.The police claimed that the petitioners were inducing and abetting prostitution and booked them under the Immoral Traffic (Prevention) Act and IPC (now Sections 143 and 144 of the Bharatiya Nyaya Sanhita)."Since they were alleged to be mere customers, such offences would not apply to them, and customers who pay money in exchange for sexual services cannot be held liable for trafficking or for sexual exploitation," argued the petitioners' counsels.The state, on the other hand, relied on earlier decisions of the high court holding that Section 370A(2) could apply to customers."The provision was intended to punish the ‘end user' of trafficking and those who create demand for trafficked persons," the state counsel argued.However, relying on Supreme Court rulings, the bench held that a customer of a sex worker "cannot be prosecuted for trafficking" because such a person cannot be termed a trafficker merely for seeking sexual services. At the same time, the court ruled that a customer could be prosecuted under Section 370A(2) if the sex worker is a trafficked person and the customer knew or had reason to believe that fact.The court held that factors such as dealings through a pimp, broker, facilitator, or brothel manager, and the statement of the sex worker, may be relevant in determining whether the customer had the necessary knowledge.