Guest Post: The Unchartered Territory of Customer Liability under Section 370-A IPC

(This is a guest post co-authored by Rupam Jha and Ashwin Vardarajan)

On 20th September, 2014, suspecting organised prostitution, the Telangana police inspected a colony located in Cyberabad, Telangana. They arrested two individuals, allegedly, for hiring prostitutes; and both were booked under Section 370A of the Indian Penal Code, 1860 [‘IPC’] that criminalises sexual exploitation of trafficked persons. Praying for the FIR to be quashed, the two accused, then, approached the Hyderabad High Court (‘HC’), contending that an offence under Section 370A was not made out against them. The HC, however, rejected this argument, observing, inter alia, that Section 370A takes “in its fold the customer[s] also.” [Naveen v. State of Telangana (2015)]. Three years later, the Karnataka HC in Pradeeban v. State (2018), confronted with the same question, noted that Section 370A “in no way attract[s] for punishment so far as the customers are concerned”. This contrast in judicial interpretation raises a pertinent issue, and it is in this light that we aim to discuss Section 370A IPC — to determine whether criminal liability of a customer [of prostitution] is intrinsic to this provision.

Legislative Genesis of Section 370A

The law pertaining to sexual exploitation of trafficked persons is broadly provided under two statutes in India: The Immoral Traffic (Prevention) Act, 1956 (‘ITPA’) and the IPC. In order to understand the conundrum of Section 370A we must undertake a brief study of its legislative history, which involves both these statutes.

An amendment bill to amend the ITPA, inserting, inter alia, Section 5C into the said act, was tabled before the Parliament in 2006. Section 5C of the bill provided punishment for any person “who visits or is found in a brothel for the purpose of sexual exploitation of any victim of trafficking in persons”. This provision, quite visibly, criminalises the act of a person sexually exploiting a trafficked person, without adequately laying down the standards of intent or knowledge that the accused must have while engaging in such exploitation. The bill was, then, referred to the Parliamentary Standing Committee (‘PSC’). On 23rd November, 2006, providing its assessment, the PSC released the 182nd PSC Report. The report noted that the provision had received ‘mixed reactions’ — conveying the concerns of certain NGOs who believed that the provision fails to acknowledge the very likelihood of consensual and voluntary prostitution (para. 13.3). Further, the report put forth several arguments against Section 5C pertaining to, inter alia, how an accused person visiting a brothel would ideally not be able to distinguish between a trafficked and a non-trafficked person, there being no definition of ‘sexual exploitation’, and the potential harassment by the police of every person visiting brothels [See paras 13.6-13.8].

Then, in 2012, the Nirbhaya incident happened, which threw light on many lacunae in the framework of criminal laws in India especially sexual offences. Accordingly, the JS Verma Committee (‘JSVC’), tasked with the duty to recommend changes to the existing framework of criminal law, recommended several amendments to the IPC in its 2013 Report. In response to the need of “a comprehensive code to deal with trafficking and sexual exploitation (both commercial and otherwise)”, the Committee amended Section 370, and added Section 370A to criminalise the act of “employing” a trafficked person/minor for “forced labour” (p.172 & 439). The provision, as originally recommended, was also endorsed (at para.5.16.1) by the 167th Department Related PSC Report on the Criminal Law (Amendment) Bill, 2012. Notably, there was an unnamed member who opined that Section 370A should be confined to offences relating to ‘sexual exploitation’ and not ‘forced labour’ (para. 3.2.26). Section 370A (2) as proposed by the JSVC read as follows:

“Whoever, despite knowing, or having a reason to believe that an adult has been trafficked, employs such adult for labour, commits the offence of forced labour of a trafficked adult, and shall be punished with rigorous imprisonment for a term which shall not be less than three years but may extend to five years.” (Emphasis added)

However, when Section 370A was formally introduced vide the Criminal Law (Amendment) Act, 2013, its focus shifted from those employing trafficked persons into ‘force labour’, to those engaging in ‘sexual exploitation’ of trafficked persons/minors – thereby critically deviating from the amendment proposed by the JSVC. The inserted provision of Section 370A (2) now reads as follows:

“Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine.” (Emphasis added)

The legislature offered no justification for this change. Further, in their move to alter the proposed Section 370A, the Parliament has brought back the concerns echoed by the PSC on the 2006 ITPA amendment bill. 

The Shallow Judicial Explication

In the backdrop of this alteration, the Hyderabad HC in Naveen held the customer, that is — in this context - the person who engages the services of a prostitute, may be tried under Section 370A — a decision that has since been followed quite a few times (illustratively, see here). In doing so, the courts implicitly raise either of the two presumptions against the customer: firstly, the accused's knowledge about the victim being trafficked; or, secondly, a reason for the accused to believe so. This eliminates the difference between a customer “who engages the services of the prostitute” and the individual who “engages such [trafficked] person for sexual exploitation”. What is more, such interpretation fails to take note of the element of volition, in so far as the sex worker is concerned, and places an arguably undue burden on the customer to conduct a backdrop check of the sex worker. 

Bewilderingly, in holding the “customer” liable under the provision, the Hyderabad HC in Naveen relied on the JSVC Report — observing that this interpretation fell in line with “the object with which the report was submitted”. As has been previously established, Section 370A bears no resemblance to the suggestion made in the committee report. JSVC suggested a provision criminalising the engagement of trafficked persons for forced labour, while Section 370A now criminalises engagement of trafficked persons for sexual exploitation. Therefore, it is unclear how the Courts reached the conclusion that they did, considering, particularly, that not once has the text of the bare provision been satisfactorily discussed in any case.

This difference in the judicial opinions of the Hyderabad and Karnataka HC (as discussed earlier) in this regard were brought to the notice of the Hyderabad HC in Mohd. Riyaz v. State of Telangana (2018). The petitioners contended that the decision in Naveen did not lay down the correct law under Section 370A — thus warranting reconsideration. However, the HC rejected this argument and held that a person coming to a brothel, or hiring a prostitute/sex worker, for participating in sexual intercourse “is said to have engaged in sexual exploitation” and may thus be liable under Section 370A. This explanation fails to consider the entire text of the provision. Put simply, Section 370A does not criminalise the very act of hiring a prostitute. Rather, it criminalises the act of engaging a trafficked individual for sexual exploitation. The interpretation offered by the Courts lends to the belief that hiring a prostitute, irrespective of the consensual nature of the act, by its very nature, is tantamount to sexual exploitation of a trafficked person. Now, although, Section 2(f) of ITPA, defines prostitution to include sexual exploitation, the key word for us to consider here in the text of Section 370A is trafficked, and the knowledge of the same. 

Moreover, as noted by the 182nd PSC Report, this allows the police the power to harass anyone who hires a prostitute, or goes to a brothel. Interestingly, Shashi Tharoor, during the Lok Sabha discussions on Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2018, too criticised Section 370A for being interpreted too “liberally by the Police and the courts, going well beyond the legislative intent of those provisions.”

Conclusion

To summarise, a literal interpretation of Section 370A is capable of encompassing customers – as prostitution is also considered a form of ‘sexual exploitation’. The catch here is whether the customer had ‘knowledge’ of him/her sexually exploiting a ‘trafficked’ person/minor. This determination of knowledge under Section 370A is seemingly difficult in comparison to other offences under IPC. Lastly, it has a detrimental effect on the rights of trade and livelihood of sex workers – as this interpretation directly discourages a profession (prostitution) which is not criminalised per se. It is pertinent, therefore, that this interpretative lacuna be looked into at length, and its implications be duly weighed by the courts in the future.