In the latest news on moral policing, earlier this month the Mumbai police conducted a round of raids across lodges, resorts and hotels in the holiday region of Madh Island and Aksa in northern Mumbai and apprehended close to 40 couples who were staying as guests. The reason: indecent exposure within the privacy of a hotel room.
On August 6, 2015, led by Deputy Commissioner Vikram Deshpande, the raids were conducted by knocking on room doors, forcibly hauling the vacationers to the police station, and detaining them amidst public humiliation. Police officers went to the extent of making phone calls to the parents of those individuals who were enrolled in colleges – even though they were above the age of 18, and thus legal adults. In addition, women were asked to prove that they were not prostitutes. After about five hours of detention and humiliation in police custody, the couples were made to pay a fine of INR 1200 each (~£12), and allowed to leave only after giving an express assurance that they would appear before the local magistrate if summoned.
The legal provision cited by the Mumbai police is Section 110 of the Bombay Police Act 1951. Amongst a plethora of controversial instances, this provision has been also been used to apprehend individuals engaging in group hugs while posing for a photograph. This section vests in the police the power to apprehend individuals “behaving indecently” in a “place of public resort”. It is wielded, however, as a thinly veiled catch-all provision for the imposition of conservative views upon individuals who make up what is touted to be the largest liberal democracy in the world.
From a practical perspective, this provision is problematic on three counts. First, the phrasing of the provision makes it prone to arbitrary application, particularly by conservative members of the police. The words “indecent behaviour” and “place of public resort” are undefined by law. This has been zealously exploited by the police, most obviously the abovementioned over extension of the provision to consensual activity in privately rented rooms.
Second, the implications of such incidents on the right to privacy are cause for great concern. Notwithstanding the Attorney General’s recent reference, the right to privacy has been read to be a guaranteed fundamental right under Article 21 of the Indian Constitution (the right to life and personal liberty). This was most recently reaffirmed in the People’s Union for Civil Liberties judgment of the Supreme Court of India. Further, India’s international obligations mandate compliance with this right. The Universal Declaration of Human Rights (UDHR) provides for freedom from arbitrary interference in one’s affairs as per Article 12. This right has been developed and recognized under Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which India acceded to in 1979, and is hence obligated to ensure the application of.
Third, the right against arbitrary detention is engaged. The Indian Constitution provides for a right against unlawful detention and arbitrary arrest under Article 22. Moreover, the 2010 amendment to the Indian Code of Criminal Procedure, 1973, mandates certain safeguards for arrested persons, to curb untrammeled exercise of police power. It states that for offences punishable with imprisonment up to 7 years, the police may not arrest merely upon apprehension. They must first issue a notice of appearance. Only upon the failure of the person in question to appear before the police can they be arrested. In this case, as per Section 80 of the same Act, no warrant is needed for the arrest of persons under the offence described above. Such offences are categorised as ‘cognisable offences.’ As regards ‘non-cognisable’ offences, an arrest cannot be made without a further issue of a warrant for arrest. Furthermore, the police must detail the reasons for the arrest in writing and notify the detainee. In the instant case, no notice of appearance or warrant was issued (even though this is a cognisable offence), and the reason was only provided post facto. Notably, Article 9 of the UDHR and Article 9 of the ICCPR also recognize a right against arbitrary detention.
After an overwhelming response from civil society and the media, the Chairperson of the Maharashtra State Human Rights Commission announced that an inquiry into the incident would be conducted. It is hoped that this will give due weight to the multiple rights violations that resulted from this incident.
Update: This post was updated on 5 September 2015 to clarify the need for a warrant under the Code of Criminal Procedure 1973.