Article 377: The Colonial Law and Its Lasting Effects

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L A W – B A N G L A D E S H

M. Nil

Article 377 of the Bangladeshi Penal Code states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

This is the law that legally bans homosexuality in Bangladesh. 

Although, the article was only implemented once in 2017 when a group of men in a community centre in Keraniganj were arrested for having a “gay party”, the article remains a dark cloud over the lives of the Bangladeshi queer community because it recognises them as criminals, as “other”, who need to be rectified to adhere to the heteronormative patriarchy of the country. More importantly, it tells them that they will not be protected by the state if they choose to live as themselves.

So, what was the origin of the infamous Article 377?

While many may be under the presumption that the article which criminalises queer people stems from Islamic roots, it is actually a fruit of colonialism.

The Roots of the Article

In 1860, when Bangladesh was still a part of India, Thomas Babington Macaulay, a firm believer of the virtues of Victorian Christian morality, led the Commission that enacted the Indian Penal Code. Macaulay was an advocate of the colonial sentiment that viewed colonialism as “civilising missions”. Hence, in an attempt to “civilise” the diversity previously present in the sub-continent, the British Empire criminalised queer relationships, going so far as to even outlaw the Hijra community in the 1871 Criminal Tribes Act.

This intolerance towards the queer community stemmed from a desire for the British Empire to establish itself in the sub-continent and inoculate its ideologies in the people. Gender and sexuality were targeted to repress and erase the diversity previously present. The British viewed the lack of gendered pronouns and the androgynous clothing of the sub-continent as inferior and in need of rectification.

And, in trying to impose rectification, they violated the rights of the queer and Hijra community, establishing them as the “other”, and not allowing them to belong to the homogenous society the British wanted to create. Hence, the conception of the legislation caused the people of the sub-continent to repress a vital part of their identity, a successful undertaking by the coloniser to oppress the colonised.

Understanding the Article

Section 377 is quite vague in its wording of “unnatural offences”, the only clarification being “penetration”. The vagueness of the wording, added to the difficulty of actually proving that people have engaged in homosexual intercourse, makes the law difficult to implement.

As a result, the police and the court have often had to reprimand people by outward appearances and assumptions such as men acting effeminate, or people from the Hijra community. And, this is also what happened in 2017. The men arrested were not actually charged with section 377, but rather the possession of drugs because it was difficult to concretely prove that they were actually homosexuals.

The fact that the article specifies that the intercourse can be “[voluntary]” shows that it does not matter that there is consent between two adults; all that matters is that it does not align with the heteronormative ideal of sex.

Additionally, the law describes queer sex as “unnatural”, which in itself leads people to view it in a negative and intolerant light. This, together with religious and cultural biases, makes section 377 a tool to stigmatise and invalidate queer people.

A Look at Bengal Before the Article

While many may be under the notion that the intolerance Bangali society holds towards queer people  now has been passed down from earlier times, it was not so. Before the criminalisation of queer people and the Hijra community, the Indian sub-continent was rich with diversity. The evidence, if one looks for it, can be found in the tiniest details — hidden, hinting at a larger truth.

The very first evidence is our language itself, the language we fought and died to speak. The Bangla language is inclusive in its use of non-gendered pronouns. This minute detail of the language we use every day may go unobserved by many, but to a Bangali person coming to terms with their gender identity, it may mean the world. It also tells us something about the inclusivity that may have been a very common part of our culture before colonialism.

The second evidence is the existence of the Hijra community itself. Before colonialist ideologies were introduced, the Hijra were respected and venerated. They were invited to bless pregnancies, childbirth, and marriages, as they were thought to possess spiritual powers. The Hijra were also very visible in their diversity, and historical documents show that even if people were not completely accepting, there existed some form of tolerance.

Literature is the third piece of evidence that speaks of a more diverse and accepting past. Pre-colonial literature, for instance, often contains queer content. পুরানো দিনগুলি (Days of the Past) has passages of romantic liaisons between people of various genders as part of its descriptions of an idealised Muslim society. ইন্দিরা explores an intimate encounter between two women that criticises ideas of chastity, patriarchal expectations of romance, and social conservatism. Meanwhile, Shri Ramakrishna Paramahansa centred practical experiences of sex in his spiritual arguments, which included descriptions of acts between two men and between two women.

The final evidence, perhaps, is present in the art and fashion of pre-colonial India. The androgynous clothing of the pre-colonial period is not a surprise to us because we have seen it depicted many times in our textbooks and in museums. The jama and angrakha (dress-like garments worn by masculine people) of courtiers in pre-colonial India, along with the unstitched clothing worn by people such as sarees and dhotis indicate a different attitude towards gender expression than the one generally adhered to today.

The art of the period, too, I believe, is trying to tell us something. If you look closely, you will see a homogeneity present in the ways the figures are drawn. Although masculine and feminine features such as facial hair and breasts are often present, the art portrays people with sameness which, if the non-gendered pronouns are taken into consideration, might be telling us of a past more grounded in equality and acceptance than the one we see now.

It is apparent, then, all that we have lost to colonialism.

Attempts to Repeal

Back in the early 2000s, queer groups in Bangladesh started talks of organising, although their focus was less geared towards an attempt to repeal section 377. The Hijra community, however, had always shown an interest in getting the legislation repealed and even partook in awareness and training workshops to educate the masses regarding section 377.

However, due to cultural stigma and a reluctance from the government to make people more aware of queer rights, awareness campaigns were mostly confined to a small sphere of people. Moreover, attempts at organising proved to be futile due to internal dissent. For instance, between people who identified themselves as MSM (men who have sex with men) and people who felt more comfortable identifying as the Western-conceived “gay”.

This is often the argument used by queerphobic people to invalidate queer people. Because most people in Bangladesh are unaware of our past and are influenced by both cultural and religious ideologies, they view the concept of queer identities as imported from the West. And, this is why a neo-liberal approach to attaining queer liberation fails. It is important to reframe what it means to be queer in a Bangladeshi context and to question authorities whose responsibility it is to ensure our safety and rights. 

The Weaponisation of the Article

Although the article was only used once to arrest people in Bangladesh, it has been recalled and weaponised many times to directly harm and abuse queer people in the country. 

Most notably, the brutal murders of the queer-rights activist Xulhaz Mannan and his friend and co-activist, Mahbub Rabbi Tonoy, by the Islamic extremist group Ansar al-Islam in 2016 was also a result of Section 377. After their murders, which were publicised in all major media outlets around the country, other queer rights activists were forced to flee the country or go into hiding because of the unsympathetic to downright threatening reactions it incited.

“Our society does not allow any movement that promotes unnatural sex,” the Home Minister at the time commented, regarding the incident, quoting words from the law that colonialism imposed on us.

With the death of Xulhaz and Tonoy, all queer-based activism in the country came to a halt in the following years. Publication of Roopban, the first queer magazine in Bangladesh, stopped. The Rainbow Rallies and Hijra Pride arranged in both 2014 and 2015 by the Bangladeshi queer community stopped. Queer people around the country were forced to be silent and hide because of continuous threats by fundamentalist groups and no one to ensure their protection or fight for their rights. 

This is still how it continues to be today. For the past two years, extremist groups have been displaying increasingly threatening attitudes towards queer people. Last year, Rokomari, an online book-selling platform, promoted the queerphobic book, Obishopto Rongdhonu, a book containing information about queer-rights activists and queer-coded words people in the community use.

This year, the community has been targeted again by fundamentalists on Facebook warning queer people to “correct their ways” if they do not want to be harmed or murdered. The state’s stance to not address any of this hostility and their unwillingness to ensure the safety of queer people only fuel extremists to continue to threaten this very marginalised community.

Section 377, birthed from colonialism, has had and still continues to have an over-arching and insidious influence on the queer community in Bangladesh. By criminalising queerness, they contributed to the vitriol we have to experience every day. By criminalising queerness, they make us live in fear every day. By criminalising queerness, they force us to hide. By criminalising queerness, they foster intolerance. By criminalising queerness, they give power to those who still continue to oppress us. By criminalising queerness, our colonisers still rob us of the freedom to be ourselves.

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