This law gave Mumbai police the right to search those hotel rooms

We live in troubled times. On July 22, the Attorney General of India categorically asserted there is no fundamental right to privacy in India. On August 6, a hotel was raided on the outskirts of Mumbai in which 40 couples were rounded up, beaten, and ultimately fined for “indecent public behaviour". They were at best having sexual intercourse as consenting adults in the privacy of their own rooms. 

This is no strange incident. In colleges, couples constantly obsess over this possibility. This is why there is a particular code of conduct that unmarried, heterosexual couples are used to following. 

Once, when my father visited Bangalore while I was studying there, he stayed at a hotel near Majestic. He checked into the hotel in the morning and I met him for lunch after class. He was in town just for the day, and was amused at my carrying a large duffel bag for what would be an overnight stay. As we entered the hotel, the man at the reception ran up to us to stop us from casually walking to the room. My dad’s irritation quickly gave way to surprise at how easily the man backed off as soon as I held up my duffel bag. I think my dad figured things out by the time we had to close the windows of the room to avoid the people flashing laser pointers at us. It saved me the embarrassment of having to explain that the management was concerned with my not looking like a sex worker, even if I was one.

Phrases like “sex work is decriminalised in India” this get bandied about frequently. I tend to purse my lips when I hear them, to stifle the “not quite” that may escape and break bubbles. Sex work is decriminalised, but that’s about it. 

The entire ecosystem and mechanics of sex work—pimps, soliciting,  brothels—​are all criminalised. If you are somehow able to work without breaking any of these other provisions of law, you still have to have sex somewhere, obviously. 

This is what makes it tricky. The definition of brothel under the Prevention of Immoral Trafficking Act (never mind the value judgment in the title of the legislation) is wide, and includes: “any house, room, conveyance or place or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes."

A hotel can, therefore, be a brothel if any of its rooms have two or more sex workers using it. Besides that, any person who is a  “keeper” of any public place and knowingly permits prostitutes to resort to or remain in such a place, also commits an offence. Hotel owners also run the risk of losing their licenses under this provision. 

A police officer will only know there are sex workers using the hotel rooms as their place of work if they enter each room and check what’s going on. This is ably facilitated by the provision which allows for the police, if they have “reasonable grounds for believing that an offence punishable under this Act has been or is being committed, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant."

Of course you can’t waste time getting warrants, not with Indian men and their efficient performance rates at least. So officers can pretty much record an “anonymous tip off” in the notoriously secret police diaries that exist, and raid the premises. They have the procedural right to question every patron there, on the grounds of investigation. If a person is found to be a sex worker, they can prosecute the hotel owner, and of course, rescue the sex worker and send her to a shelter home.

Here’s the thing we don’t realise when we outrage about the police raiding hotels in this manner, or rapping on car windows of couples chilling at the beach side, or stopping them at police nakabandis asking them where they were coming from. There is a right to privacy, despite what the Attorney General says. But the right of the police to question consenting adults about their relationship and whereabouts is strongly derived from provisions under the Prevention of Immoral Trafficking Act (PITA). A car can be a brothel, as we’ve seen earlier. A person who lives off the earnings of a sex worker commits a criminal offence. The presumption extends to “…any person over the age of eighteen (who is) habitually in the company of a prostitute”. If a sex worker and “the person with whom such prostitution is carried on” are found in any premises within a distance of two hundred metres of a place of religious worship, educational institution, hostel, hospital, nursing home or public place of any kind, they are committing a criminal offence. It’s hard to find any other law which justifies such invasion of privacy. The PITA is the trump card of invasiveness for the State. Therefore, sex workers do not have a right to privacy, a right which should be extended to them as much as it is to others. The consequence of their lack of privacy is that any non-married consenting adult couple can be pulled up by the police using the PITA as a starting point.

When the police stops a couple to ask what their relationship is, what they are asking them to do is to prove that neither of them, particularly the person who identifies as a woman, is a sex worker. If they aren’t able to prove that, then though sex work is decriminalised, the ‘accused’ is still in the criminalised ecosystem. If they are in a public place, they will be presumed to be committing an offence. If they are in a hotel, the management is deemed to have knowledge of it because they walked in without a bag and a mangalsutra. The male partner may be presumed to be a client, if he’s lucky, or a pimp, if he’s not. Once a couple is vulnerable and before the police, being inexplicably charged for ‘public nuisance’ is possibly the outcome for a best-case scenario.

Think about that. Then think about rights to privacy and how laws like the PITA impact it. Then think about whether or not being a sex worker is really and truly decriminalised in India. 

And if you think you are entitled to a ‘better’ right to privacy than a sex worker, then keep your big duffel bags and mangalsutras ready.

The author is a lawyer and tweets at @MumbaiCentral.