The alleged rape of a Mumbai model in police custody is another instance of the misuse of the ambiguity of prostitution in Indian law.

The recent report of the arrest and alleged rape of a Mumbai model by a police officer is yet another instance of the outrageous country-wide misuse of the ambiguity of prostitution in Indian law. Although in this case three cops and five others, reportedly informers, have been arrested, in most cases such incidents end up victimising or even blighting the lives of the accused.

The in-custody ordeal of the model, as reported by Indian Express, is a classic case of how policemen with wrong law and order priorities and wilful intent of exploitation can target women with impunity. They can indulge in assault, shaming, extortion and even rape as they wish. The consequence that the victims suffer are often lifelong and irreversible.

According to the Indian Express report, the model had gone to a city hotel to meet the producer of a movie and was coming out with a male friend when she was intercepted by a six-member team in the parking lot declaring that it was a “raid”. She was subsequently taken to a police station where she was raped and assaulted and robbed off her valuables. She was finally let out with a petty fine for creating “public nuisance”. She claimed that her male friend had to pay Rs 4.35 lakh.

Such raids in hotels in which “models” and “actresses” are arrested for “immoral activities” is quite routine in India and make media headlines. However, nobody knows what happens next - whether they are found guilty or not. But what’s certain is that that victims, and often their families, are maligned for life.

The recent sensational arrest of a prominent Telugu actress on such grounds from a luxury hotel in Hyderabad is a case in point. While she was in a rescue home following the arrest, some sections of the media published her alleged submission of guilt, which was denied by her on her release. While the media went after the prurient details of her alleged rendezvous and the arrest, nobody cared for the rights of the actress and if any law was misused by police. Unless the police had unimpeachable evidence of an organised racket and proof that she resorted to “prostitution” close to a “public place”, there was no chance of any illegality. In fact, under Indian law, it’s mostly third parties who can be deemed guilty. However, the summary of her story was that her career was more or less finished with this single incident.

The alleged conduct that empowers the police to arrest and harass women is prostitution. But the funny fact is that prostitution is not illegal in India and only certain activities that surround it can justify police and legal action. The clause that the police can use is solicitation by the woman and acts of pimping, running a brothel, trafficking etc. In a hotel, if a man and woman meet and have sex in their privacy, there is absolutely no violation of law even if money changes hands. Still the police target “actresses” and “models”, go out of their way to raid hotels, and and engage in naming and shaming through the media. In a bizarre case in 2013, local police had rounded up 56 couples from a hotel in Ghaziabad and kept them in police custody. Similar raids and “arrest of actresses” are also common in Tamil Nadu, Karnataka and Kerala.

The only legal instrument the police can use on cases related to alleged prostitution is the Immoral Traffic Prevention Act (ITPA), which incidentally does’t allow their intervention in situations like that of the Mumbai model even if she indeed had some liaison with the producer. But, what the police use are the clauses on trafficking, solicitation, brothel keeping etc which are cognizable offences in which they can raid without a warrant. In almost all such cases, they find no illegality and finally charge the victims with silly offences under the IPC. In the case of powerless women, including sex workers, they charge solicitation and get them remanded. In the case of the Mumbai model, reportedly, after the arrest, abuse and rape, she was finally charged with the petty offence of “public nuisance”.

The written submission of the Lawyers Collective to the Parliamentary Standing Committee on Immoral Traffic (Prevention) Amendment Bill 2006 illuminates such pitfalls and vividly captures the situation that the Mumbai model was trapped in. It said: “It is well known that powers conferred on law enforcement officials; both under the ITPA as well as local police enactments such as Bombay Police Act are grossly misused to threaten and extract favours from sex workers either in the form of bribes or free sex.”

It also highlighted the risk of allowing lower level police officers in pursuing such cases. “Reduction in the rank of the Special Police officer will only aid police personnel in lower ranks to abuse statutory powers, flout legal norms to violate fundamental rights and civil liberties.” In the case of the Mumbai incident, it appeared so true that the victim got relief only when she directly reached out to the city commissioner. Lawyers Collective further noted: “It is a cardinal principle of law that where such powers are conferred they should be vested in high officials so that the possibility of misuse is minimal.”

The plight of the Mumbai model, and that of many others who end up in police custody, is the one of the reason why legal experts and activists have been asking for comprehensive amendments to the ITPA. An Amendment Bill was introduced in the Parliament in 2006, which proposed to decriminalise soliciting, while inserting several other clauses that would have continued to aid the harassment by police in the name of search, raid and rescue to prevent trafficking as well as prostitution close to public places among others. However, the Bill lapsed. The Bill would have rectified a few issues, but would have continued to cause trouble.

The problem is legal and conceptual clarity. In fact, prostitution was not illegal in the original Indian law - Suppression of Immoral Traffic in Women and Girls Act (SITA) - itself. When it was amended in 1986, it was further clarified that only “sexual exploitation or abuse of persons for commercial purposes” was illegal. In a 1995 judgement, the Delhi High Court had also made it unambiguous that “prostitution itself is not a criminal offence. What is punishable under the Act is sexual exploitation of abuse of persons for commercial purposes….”

Still, the police lay traps to nab women in hotels and violate their rights because there are still enough loopholes to suspect cognizable illegality. At the end of the day, the victim may walk out free, but not before life-altering traumatic experiences as the Mumbai model has reportedly suffered.

“In Delhi, civilians rape women… In Mumbai, it’s the police,” is what she model has reportedly said.

The ITPA needs urgent revision, and most importantly, the powers of the police must be vested only with senior and responsible officers.