[The arrest of the “Bangalore techie,” as
newspapers are calling him, is among the first cases to appear in court since
last December, when India’s
Supreme Court reinstated the 1861 law. The decision seemed to reverse a period
of gradual liberalization in Indian society, including a decision by Delhi’s
high court that the law violated constitutional guarantees of equality, privacy
and freedom of expression.]
By Raksha Kumar and Ellen Barry
BANGALORE, India — When a young wife in
Bangalore approached the police to file criminal charges against her husband
this month, she explained how her suspicions had mounted during the months
after their arranged marriage.
Beginning on their wedding day, they had had
no sexual contact, the complaint read, because “my husband would not evince any
interest in this issue.” When she raised the issue with his parents, she told
the police, “they blamed me, saying I was not adjusting to living with him.”
Left to cope with the matter alone, she took
increasingly serious measures, installing hidden cameras inside the apartment
they shared.
Her husband — a 32-year-old executive at an
Internet technology company — was arrested on Sunday, charged with violating
Section 377 of the Indian Penal Code, a British colonial-era law that
criminalizes “carnal intercourse against the order of nature with a man, woman
or animal.” Though prosecutions under the law have been rare, a conviction
could result in a fine, 10 years’ imprisonment, or a life sentence.
The arrest of the “Bangalore techie,” as
newspapers are calling him, is among the first cases to appear in court since
last December, when India’s
Supreme Court reinstated the 1861 law. The decision seemed to reverse a period
of gradual liberalization in Indian society, including a decision by Delhi’s
high court that the law violated constitutional guarantees of equality, privacy
and freedom of expression.
Rights activists said the case could represent
a dangerous precedent, because the sexual acts involved had been consensual and
because the woman had invaded her husband’s privacy.
“What should have been seen simply as a matter
of the man cheating on his wife, which would have essentially been a matter of
civil dispute, has now become a criminal matter where the state is intruding on
a person’s privacy,” said Danish Sheikh, a Bangalore lawyer who met the
defendant on Thursday, when he was released on bail after four days in judicial
custody.
This is the second case to be prosecuted in
Bangalore since the Supreme Court judgment, following that of a doctor who was
blackmailed by five men with whom he had had sex. The men were booked on
charges of extortion, blackmail and Section 377 violations, while the doctor
was also charged under Section 377. The case is currently on trial.
The “techie” case could prove more useful as a
challenge to the Supreme Court ruling that restored the criminal penalty for
gay sex, Mr. Sheikh said, since it does not involve abuse of power or
extortion, which the court has dismissed as grounds for scuttling the law.
“Here is a fine example of a case where there
is neither extortion nor blackmail, and yet the state finds itself breaching
someone’s fundamental right to privacy,” Mr. Sheikh said. “This gives the
defendant fine grounds to challenge the ruling.”
The account of the woman — both her name and
her husband’s have been withheld by officials — has drawn widespread attention,
in part because she describes the pain and isolation of finding herself in an
arranged marriage that failed from its earliest days.
“My husband used pink lip gloss, like, daily,”
she told a radio interviewer. “And mannerisms were so feminine!”
At one point, suspecting that the problem was
impotence, she suggested that her husband get medical tests done, but he
refused; his parents were hostile when she raised the issue.
“I was suffering, thinking that my life was
ruined,” reads a section of the criminal report. “I got to know unknown men
were coming when I was not there.”
After capturing him in a sexual encounter on
videotape, she brought the evidence to a local police station, telling the
police, “My husband is a homosexual performing acts against nature. Take legal
action against my homosexual husband,” according to police documents.
Shaleen Rakesh, an activist who filed a
challenge to the law in 2001, said that many gay men find themselves trapped in
arranged marriages, and that he hoped the public would have some sympathy for
the defendant.
“Had he been comfortable enough to talk about
his sexuality, he probably would not have been forced into a marriage like
this,” he said, noting that his own partner had been pressured into an arranged
marriage, which lasted five years.
“It wasn’t so much that he was forced, it’s
just that it was easier to face marriage than to face all the social pressure to
get married,” he said.
A few reporters waited outside the courthouse
on Thursday, but the defendant left in a car, speaking to no one. Hemant
Nimbalkar, joint commissioner for crime in Bangalore, said it was a case like
any other.
“A law is a law,” he said. “Whether we like it
or not, 377 is a reality. We have just followed procedure.”
Raksha
Kumar reported from Bangalore, and Ellen Barry from New Delhi.
