AUTHOR: Drishti Gupta, A student of Vivekananda Institute Of Professional Studies


The recent case law of Abhijit vs. State of Kerala, 21ST December 2023, The Kerala High Court has provided clarification on the legal status of patrons in brothels according to the Immoral Traffic (Prevention) Act, 1956 (ITP Act). This ruling carries substantial implications for the interpretation of ‘procurement’ within the realm of prostitution. Also the laws governing human trafficking in India and the anti-trafficking laws.


The Kerala High Court has determined that a client discovered in a brothel can face charges under the Immoral Traffic (Prevention) Act, 1956. This crucial decision broadens the scope of the legislation aimed at addressing human trafficking and the exploitation of individuals in commercial sex work.

Human trafficking refers to the illegal act or practice of transporting individuals from one country or region to another, typically for forced labor or sexual exploitation.


Human trafficking constitutes a severe criminal offense and a profound infringement of human rights. Among offenses against children, the sexual exploitation of minors is deemed more egregious than others. Article 51A (e) of the Constitution mandates every Indian citizen to renounce practices that demean the dignity of women. However, the situation in India does not always align with the constitutional spirit. The United Nations Office for Drugs and Crime (UNODC) outlines human trafficking in the Trafficking Protocol as the “recruitment, transport, transfer, harboring, or receipt of a person through means such as threat or use of force, coercion, abduction, fraud, or deception, with the intention of exploitation.” As per UNODC assessments:

– 51% of identified trafficking victims are women, 28% are children, and 21% are men.

– 72% of individuals exploited in the sex industry are women.

– 63% of identified traffickers are men, while 37% are women.

– 43% of victims are trafficked domestically within national borders.

UNODC highlights three core elements of human trafficking: the act (what is done), the means (how it is done), and the purpose (why it is done). Contrary to a common misconception, the transportation of individuals across borders is not an essential element for human trafficking; it can occur within a country or even a local community. However, transportation across borders is a crucial factor in defining human smuggling.


India has a comprehensive set of laws enacted by both the Parliament and certain State legislatures, in addition to the provisions outlined in the Constitution, which serves as the fundamental law of the country.

Constitution of India:

  • Article 23: Safeguards against exploitation, prohibits the trafficking of humans and beggary, and renders such practices punishable under the law.
  • Article 24: Shields children below the age of 14 from engaging in employment in factories, mines, or other hazardous occupations.

Indian Penal Code:

The Indian Penal Code includes approximately 25 provisions related to trafficking, with some of the notable ones being:

  • Section 366A: Criminalizes the inducement of any minor girl under the age of eighteen to go to a place with the intent of forcing or seducing her into illicit intercourse with another person.
  • Section 366B: Deems it an offense to import any girl under the age of twenty-one with the intent that she will be forced or seduced into illicit intercourse with another person.
  • Section 374: Penalizes any person who unlawfully compels another person to labor against their will.

Immoral Traffic (Prevention) Act 1956

The Immoral Traffic (Prevention) Act, 1956 is the primary legislation for the prevention of sexual exploitation for women and girls. The word “Trafficking” is defined only by the Goa Children’s Act, 2003, which is a state law. Thus, while the ITPA is the main legislation related to the commercial sexual exploitation of children, it does not define trafficking.

The Act outlines various offenses, including:

  • Maintaining or permitting premises to be used as a brothel
  • Living off the earnings of prostitution
  • Attempting, procuring, or taking a person for the purpose of prostitution
  • Detaining any person in premises for prostitution
  • Engaging in prostitution in the vicinity of public places
  • Seduction of a person in custody

Furthermore, the law prohibits the public solicitation of sex and imposes penalties on clients engaging with sex workers in the vicinity of places like worship or hospitals. Penalties for offenses vary, ranging from three years to life imprisonment, along with fines, depending on factors such as the age of the victim and consent. However, some crucial terms within the legislation remain unclear.


Context of the Case:

The ruling was issued in response to a criminal revision petition submitted by an individual discovered as a patron in a brothel. The petitioner faced charges under different sections of the ITP Act, namely Sections 3, 4, 5, and 7, which relate to maintaining a brothel, deriving income from prostitution, and inducing or procuring a person for prostitution. The initial request for dismissal was rejected by a magistrate court, prompting an appeal in the High Court.

Court’s reasoning: 

The term ‘procure’ lacks a specific definition in the ITP Act. Consequently, its interpretation must consider the context in which it is employed and align with the statute’s intended objectives. The primary aim, as outlined in the Statement of Objects and Reasons, is to prevent the commercialization of vices and trafficking among women and girls. According to the Merriam Webster Dictionary, ‘procure’ means to obtain possession of something. Interpreting this definition in the context of the stated objective of the statute, an individual who gains control or possession over another person for the purpose of prostitution is considered to be procuring. Therefore, a customer also falls within the scope of Section 5 of the ITP Act. Consequently, the petitioner’s argument that an offense under Section 5 does not apply to them is not valid. Therefore, the challenged order is not subject to complete annulment.

Implication of the judgement: 

This decision carries noteworthy consequences. Firstly, it broadens the interpretation of legal responsibility under the ITP Act to encompass patrons of brothels. Secondly, it emphasizes the Act’s overarching goal to address the exploitation inherent in prostitution. The verdict clearly communicates that the law is not solely aimed at individuals directly involved in the operation or financial gains of prostitution but also extends to those who engage as consumers.

Conflicting past rulings:

Crucially, there have been divergent opinions in previous rulings by different High Courts regarding the applicability of ITP Act sections to brothel clients, with Andhra Pradesh and Karnataka previously ruling against it. However, recent judgments from the Kerala High Court have consistently affirmed liability, arguing that ‘immoral trafficking’ is inherently impossible without the involvement of all parties in the transaction.

Significance of Broader Interpretation:

The recent ruling extends previous viewpoints by suggesting that clients can face legal consequences for supporting organized sexual abuse, going beyond just prosecuting those who profit from or facilitate such activities. However, the decision currently supports charges rather than outright convictions, indicating a nuanced evaluation on a case-by-case basis.

Nevertheless, this legal expansion undeniably acts as a strong deterrent against demand, significantly supporting rehabilitation efforts that hinge on societal attitude changes. It fosters accountability across the entire spectrum. Moreover, the verdict prompts a reevaluation of other laws related to trafficking and exploitation using a similar perspective. Ultimately, emphasizing, and prosecuting complicity plays a crucial role in accelerating the eradication of coerced human indignity.


The Kerala High Court’s ruling represents a significant milestone in the interpretation of the Immoral Traffic (Prevention) Act. This decision establishes a precedent that may have implications for forthcoming cases related to the commercial sex trade. By encompassing customers within the realm of prosecution, the Court has underscored the Act’s objective of combating the exploitation and trafficking of women and girls.


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