We tried to be convincing in our explanations: We were celebrating a friend’s birthday (true). We had lost track of time (false). We weren’t being loud at all (mostly true).[break]
The owner jumped in saying he had stopped serving us after midnight. Let’s go, they said, at the end of this back-and-forth.
Downstairs, they asked us all, bar owner included, to get into the police pickup. We were being taken to the Sohrakhutte Police Station. At the station, tempers flared. What have we done wrong? Under what laws are you holding us? we repeatedly asked.
You’re educated people; you shouldn’t be doing this, replied one policeman. Don’t be oversmart, said another.
The conversation was long, but clearly leading nowhere. They started to process us. Name and address they asked, jotting it down on one of those heavy ledgers so beloved of the bureaucracy. Strangely, nobody asked to see any identification.
After handing over all our belongings, we were escorted to the holding cells downstairs, in the dingy basement level. I was put into the women’s cell to the right (there were no women police officers anywhere in sight). About 20 people would have fitted, if packed tightly, into the dank cell. Fortunately, there were only eight women there. Unfortunately, they were not seated comfortably. Six women were huddled together on the ground on two sheets thrown on the floor. It was a squeeze. Two women, chatting loudly and giggling, were sitting on the narrow ledge protruding from one of the walls. Both talkative, and particularly skilled at swearing, they were steadily abusing everybody around them – m@#i police, m&C*%$^@ mero buda, s!*& pani dey. One was young and fittingly wearing an Angry Birds t-shirt. The other was old and wrapped in lungi.
Slowly, introductions were made. The usual exchanges about names, jats, homes, jobs, husbands or lack thereof took place. But the key question was what we all got picked up for. Two of the women sitting on the ground had been held for two nights and were reluctant to get into the why. One woman said she had been sleeping, by herself, in a guesthouse when the police stormed in and arrested her. Much to everyone’s amusement, she kept going “aiya aiya!” because of a massive boil (pilo) on her backside. The rest said they had been arrested for being out late at night. Most claimed they had simply been walking.
Angry Birds, still swearing but really in a cheery mood, was the most expansive. She had eloped (but with her father’s permission, she emphasized) just five days before. Earlier that night, the couple had gotten into a fight after drinking perhaps a little too much chhyang. She had stormed out of their house. The police had showed up and arrested her. She had yelled for her husband. He had run out and was also arrested. The police had then searched their house before loading them onto the thana-bound truck. These are all, of course, the women’s stories. The police most likely have different versions of each, but I wasn’t in any position to ask to hear them.
Though it was likely about 2:30 am by this point, nobody seemed sleepy. We chatted for a while. The women all said the Sohrakhutta cops had been well behaved. This apparently is in contrast to some other thanas in Kathmandu where they don’t hesitate to raise their hands.
Illustration: Sworup Nhasiju
Angry Birds continued to entertain, running to the bars, calling for her husband in the men’s cell opposite, and mock wailing that she missed him. All the while, she would turn back to us, winking and grinning. Just as this was starting to get less amusing and more aggravating, Angry Birds (who had been brought in just minutes before me), I, and some men in the other cell were called out. Piled back into the truck, we were taken to Bir Hospital’s emergency room for an alcohol test. It went like this:
Doctor: Have you been drinking today?
Prisoner: Yes or No.
Doctor: Thumbprints here. Sign here.
Police: Okay, get back into the truck.
The rest of the cell was ready for bed when we returned. I laid myself out horizontally at the foot of the cramped sleeping arrangement, placed my head on somebody’s butt (definitely not Pilo Didi because she had already cried in pain when somebody else did that), pulled a corner of a blanket over myself, and fell promptly asleep. I woke up just a few hours later, groggy, grouchy, and with a crick in my neck, to someone calling my name. We were getting out.
Right before we handed over our phones the previous night, one of our group had made a call to someone saying he had been arrested. The person had to wait till morning to mobilize, but the source-force had arrived. Our group trooped back upstairs where we were made to sign the ledger. I foolishly signed without reading, only to later find out that this was probably the charges, or explanation, of why I was arrested. After a brief lecture about educated people needing to be examples, and an explanation that they were just doing their job, we were let go.
This is not an exceptional story. People are regularly picked up and held on more flimsy grounds. For me, the overnight stay was an experience, mostly novel and just a little inconvenient. But would things have been different if we weren’t obviously well-off Kathmandu people drinking in Thamel? We certainly wouldn’t have gotten out so easily or so early the next day. Would the police also have been less courteous? Would they have tolerated our questions for so long? Would they have asked for identification? Would they have body-searched us?
The experience also made me curious about the legal basis for such arrests and the police force’s reasons for implementing these laws.
It turns out that the Sohrakhutte police were well within the law in arresting us. If I had read that ledger, I would probably have found myself accused broadly of public disorder. The Panchayat-era Public Offences Act (1970) is generous in its description of what constitutes a public offense. According to the translation provided by the Law Commission, sub-clause (h) of section 2, introduced by amendment in 1982, deems “undue behaviour in public places” a crime. In Nepali, this section reads “Sarbajanik sthanma jathabhabi byawahar garnay.”
This clause was, no doubt, made purposefully vague – almost anything can be classified ‘jathabhabi.’ Section 3 goes on to say that the police can arrest a person committing any crime stated in section 2 without a warrant. The police are fully within their rights to hold the person for up to 24 hours, excluding travel time to the station and court, without charge. Ironically, section 2 also explicitly identifies the following as crimes: “obstruct[ing] any public servant,” “undue hindrance in the regular operation of…transportation,” and “damage[ing] any public or private property by committing riot or pelting stones.” There is, it appears, a glaring gap between the times and the laws.
A week after my adventure, I went to Hanuman Dhoka to interview Jai Bahadur Chand, Senior Superintendent of Police (SSP) at the Metropolitan Police Range, about the implementation of these laws. The basis of our conversation was the police’s ongoing and much-publicized “Special Security Drive.” Chand’s explanation of how the SSD is different from regular policing is timely and a little bit poetic. “We eat everyday at home, right?” He says, “But during the festivals we add a few extra dishes, some different masalas.” The SSD is apparently like this, regular policing bolstered by a few additional activities.
Key among the new activities is an awareness drive which includes billboards across town, a soon-to-be-unveiled CD of songs against criminality that will be distributed for play on buses (keep an ear out on your next ride!), and meet-and-greets in neighborhoods across the city. Chand said the police are also trying to form basti suraksha samudayas where neighburs get to know each other. This is aimed at encouraging neighbors to help each other in times of crises. Police units across town are focused on these meet-and-greets, Chand says, except, of course, when they are diverted by bandas, jatras, VVIP sawaris, and other sundry events.
Besides awareness campaigns, the police strategy appears to have two aspects to it. The first is a significant increase, resources allowing, in police presence across the Valley. Working overtime and on alert, the police have set up additional check posts, ambushes, and cordon-and-search operations in their bid to contain crime. These are all, of course, nighttime activities. I ask Chand about complaints that the police stop people in haphazard manners, ask all variety of questions, and search vehicles/people at will. This, according to the SSP, is an unfortunate reality of policing.
“If a person is walking around at 2 am, there can be a number of reasons for it,” says Chand. “The person could be lost or coming home from taking a sick person to the hospital, or returning from death rituals, or the person could be up to something.” It is the police’s duty to stop that person, argues Chand. If the night wanderer can give satisfactory answers, he/she can go home. If the person appears suspicious, the police will then take him in for further questioning.
“If the person turns out to be innocent, we’ll thank him for his cooperation and ask forgiveness for the inconvenience,” says Chand. “We sometimes have to sacrifice a few people’s comfort for the safety of most people,” he says. “Nobody enjoys it…but police work isn’t about always being a hero.”
As things stand, such stop-and-question and/or search operations are fully legal under the broad guidelines of the Public Offences Act.
The second aspect of the strategy is an increase in raids, targeting retailers hoarding essentials in the run-up to the festival season, gambling locations, and guesthouses/hotels suspected of being hubs for sex trade. Chand was very emphatic that the raids are conducted as per the laws which clearly state that “beshya gaman” is illegal. He says that, as per the law, those arrested are fined between Nr 3,000-5,000 or jailed for between 1-3 months.
This, in fact, is not the case.
“There’s no law in Nepal making voluntary sex work illegal,” says Bimala Khadka, an advocate at the Forum for Women’s Law and Development (FWLD). As a result, there is no legal basis for prosecuting adult, voluntary sex workers caught during raids, or elsewhere. Indeed, most sex workers or alleged sex workers are charged, regularly and repeatedly, under the broad-based Public Offences Act, says Khadka.
Back at Hanuman Dhoka, I ask the SSP what the protocol is when they catch unmarried couples during the raids, but it is not “beshya gaman.” What else is it if they are not married? he responds. I define prostitution as payment for sex. Chand makes no such distinctions. But, of course, it is another matter if they are “mangeytars” who are to be married, he clarifies. “Sometimes we find proof there that they are going to be married,” he says. “Otherwise we invite their parents to tell us.” If the couple has no plans to marry, they are prosecuted.
The legal basis for this is, again, nonexistent. Khadka is explicit that no Nepali law criminalizes premarital sex, adultery or children outside of marriage. In fact, the Supreme Court, in its decision on the landmark Annapurna Rana case (1998) explicitly stated that being sexually active, regardless of marital status, is a matter of personal choice. In its verdict, the SC struck down a District Court decision ordering Rana to undergo medical tests aimed at establishing that she had been sexually active and borne children. If the tests proved positive, she would be assumed married and therefore barred from claiming her familial property. In an unexpected decision, the Court ruled that a women could not be deemed married simply by virtue of being sexually active, of living with a man, or of having had children. It further stated that sexuality was a private matter which could not be legislated, though, of course, homosexuality remained criminalized for another decade.
Yet, the police often target unmarried couples, even those simply sitting together in public places, says Khadka. Other times, they arrest women for prostitution if they find condoms during body/bag searches, she adds. Khadka argues that the Public Offences Act, which was initially drafted as a peace and security tool (though is it excessive even for this purpose?), is misused in such cases to penalize behavior that is in fact fully legal.
In short, it is used for moral policing.
Allowing the security forces and legal apparatus immense leeway, the Public Offences Act is clearly a key part of the problem. And there are already efforts underway to address this. A new criminal code presented in the now-defunct CA attempts to place a greater burden on the police to show cause and present evidence, says Khadka. But there is no telling how long the Bill will take to pass. It is, after all, hard to even predict when there will be a Parliament empowered to discuss the Bill. In the (perhaps very lengthy) interim, the only solution is a more sensitive police force. This will be a necessity even when a more progressive criminal code is in place. Challenging longstanding notions of morality and deeply embedded power structures takes time, however.
In the meantime, can we do anything more than challenge the occasional cases while mostly shrugging, sighing and waiting?
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