Section 377’s Colonial Roots

Section 377 of the Penal Code, 1860, a British colonial-era law, criminalises homosexuality in Bangladesh. It provides that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal’ may be punished with imprisonment for life or for a term of up to ten years imprisonment together with a fine. While the provision does not explicitly deal with homosexuality, focusing on the wording ‘voluntarily’ is significant here, as it reveals that Section 377, which comes with the heading ‘unnatural offence’, separates it from other offences such as rape that deal with non-consensual sexual intercourse.

As is obvious, the goal of Section 377 is not to deal with sexual violence but to criminalise sexual conduct that does not fit within the heterosexual penile-vaginal model of sexual intimacy. Indeed, this has been the case, especially with respect to male-to-male sex, since the time the British Empire came up with this heteronormative legal regulation in 1860. In Bangladesh, Section 377 has contributed to building an environment that subjects people to harassment, arrest threats, and extortion simply because of their sexual orientation. This, in turn, raises the significance of decriminalisation of homosexuality as a pressing human rights issue for Bangladesh, with serious implications for equality, dignity and privacy of LGBT+ persons.

Criminalisation as Discrimination

One route to decriminalisation is to argue that the criminalisation of homosexuality is discriminatory. Bangladesh has ratified, among others, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 2 of ICESCR prohibits discrimination, and the ICESCR committee have clarified in its General Comment No. 20 (2009) that this extends to sexual orientation.

The Constitution of Bangladesh does not have an open-ended list of grounds, unlike the ICCPR and ICESCR, and so this route may be closed off. However, the Constitution does include ‘sex’ as a ground. Thus, another way to interpret the provision is the approach followed in Toonen v. Australia. There, despite the ICCPR not containing any provision that explicitly addresses sexual orientation or gender identity, the Human Rights Committee interpreted the reference to “sex” in Articles 2(1) and 26 of the ICCPR as including sexual orientation for the purposes of protection against discrimination. Although the Committee did not provide any explanation for such interpretations, discrimination based on sexual orientation has been considered sex-based discrimination because it is grounded in stereotypes associated with sex, such as the assumptions that ‘real men’ and ‘real women’ are always heterosexual.

Clashing Rights

Interconnected with this is the question of the extent to which these interpretations of human rights may be rejected or qualified on the grounds of religion or culture, thereby curtailing sexual and gender freedom, as has already arisen in the context of Bangladesh. Islam is the constitutionally recognised state religion in Bangladesh.

The Human Rights Committee has made it clear that the existence of a state religion or the prevalence of a particular religious belief among the majority population does not justify restricting any rights under the ICCPR. Any restrictions must be in accordance with the principles of universality and non-discrimination. Hence, any appeal to popular morality must not receive serious consideration when it regulates, controls, or prohibits one from exercising their human right to sexual autonomy, including the ability to decide with whom they want to engage in sexual intimacy. Indeed, the Human Rights Committee had already called on Bangladesh to decriminalise consensual same-sex relationships.

If Bangladesh wants to comply with its international human rights obligations towards its queer community, decriminalisation of homosexuality is not merely about ticking off a checklist; it is a fundamental prerequisite. The fulfilment of this requirement would mark the beginning of a form of queer liberation in Bangladesh that is free from the shackles of unjust (colonial) laws.

According to media reports, the death toll rose to more than a hundred, while thousands have been detained. Although the Supreme Court of Bangladesh later overturned the High Court’s decision and ordered the government to limit the quota to 7%, students’ demands for justice and accountability for those who have been killed, injured, arrested and detained during the protest persisted. While two Supreme Court lawyers filed a petition in the High Court demanding that law enforcement agencies stop shooting at the protesters, the Court dismissed the writ, maintaining that law enforcement agencies can use force when necessary. The use of violence against the protesters, however, eventually led to demands for the prime minister’s resignation, which occurred on August 5.

Bangladesh has ratified the International Covenant on Civil and Political Rights (ICCPR). According to Article 21 of the ICCPR, the right to peaceful assembly must be recognised by states; additionally, the right should not be subject to restriction unless falling within one of the enumerated grounds: national security, public health, order or morals. The Constitution of Bangladesh recognises the right to peaceful assembly under Article 37 in a very similar fashion to the ICCPR, but permits its restriction only on the grounds of the maintenance of public order and public health. What measures are, however, justified to maintain public order is difficult to determine.

The Human Rights Committee in its General comment No. 37 defines public order as ‘the sum of the rules that ensure the proper functioning of society, or the set of fundamental principles on which society is founded, which also entails respect for human rights, including the right of peaceful assembly’ [44]. It also explains that ‘mere pushing and shoving or disruption of vehicular or pedestrian movement or daily activities do not amount to violence’ [15] so as to allow states to curtail the right to protest on the ground of ‘public order’. In fact, peaceful assemblies, by their very nature, can cause disruption and states need to exercise a high level of toleration in this respect [47].

In a similar manner, the High Court of Bangladesh in the Khondaker Modarresh Elahi case [54 DLR (2002) 47] decided that the mere disruption to the public order is not a sufficient ground to restrict the enjoyment of the right to peaceful assembly unless the protesters’ actions are threatening. However, the use of violence by some participants itself should not lead to the blanket prohibition on otherwise peaceful assemblies [38]. States should take actions based on individual assessments only against the participants of the protest who cause the violence instead of the assembly in general [38].

The same usually applies when a third party gets involved in a peaceful protest to incite violence. In the context of the recent protest, the Government of Bangladesh has claimed that ‘miscreants’ were involved in the protest and used students as a shield to cause violence and the destruction of public properties. In this respect, the Human Rights Committee in Alekseev v Russian Federation observes that violence from third party interference alone is not sufficient to dismantle the demonstration; rather, states have an obligation to protect the participants from such violence.

In de-escalating a violent protest, measures adopted by states however need to comply with the basic principles of legality, necessity, proportionality, precaution and non-discrimination and the use of force should not be the first resort when the protest becomes violent. In fact, the law enforcement agencies are obliged to respect the fundamental human rights of the participants, to use non-violent means to tackle violence, and to provide warning when there is an absolute need to use force. It is relevant to mention here that Amnesty International has verified the use of unlawful force by the police against student-protesters during the quota-reformation movement in Bangladesh. This raises serious questions about the extent to which the measures taken by Bangladesh are justified to deal with the protest.

At the same time, the government also shut down internet communication, contrary to the criteria set by the UN Human Rights Committee which, in its General comment No. 37, said that it is imperative for the states not to restrict other means that facilitate peaceful assembly through the sharing of information and communication, such as the Internet [34].

The significance of protecting the right to protest lies not only in the fact that it is a ‘standalone right’ but also that it enables the enjoyment of other human rights such as freedom of expression. Along with the ratification of ICCPR, Bangladesh has constitutionally recognised the right to peaceful assembly which, in turn, imposes obligations on the country to ensure the enjoyment of the right.

Read more:

• University Campuses and the Right to Protest Under the ECHR
• UK Court Safeguards Fundamental Right to Protest: Liberty v Secretary of State for the Home Department
• Testing the Limits of the Right to Peaceful Demonstration under the 2010 Constitution: Kenya’s 2024 Finance Bill

From a legal perspective, freedom of dress is typically supported by reference to the rights to autonomy, privacy, and equality.  Yet, dress is also a form of expression of identity and a reflection of self, as substantiated by the United Nations (UN) Human Rights Committee in its General Comment 34, which widens the scope of freedom of expression to include one’s right to dress freely within the broader ambit of freedom of expression. In a general sense, this would mean that one has the ability to formulate an identity without unwarranted interference from the state. Nonetheless, this right is not absolute in nature, and remains subject to some limitations as provided in international human rights law.

Article 19  of the International Covenant on Civil and Political Rights – while recognizing the importance of right to freedom of expression for meaningful participation in a society – limits its exercise on the basis of public morality. Thus, the ability to express oneself freely can be curtailed by the moral values and interests of a society. Interestingly, however, these moral values are usually the values of the majority and signal a patriarchal and heteronormative interpretation of public morality. Since morality differs between and within social contexts, dominant cultures, religions and traditions often play an integral role in determining moral values. Accordingly, states benefit from a certain amount of leeway in deciding when an act of expression infringes on religious or cultural values. In the Handyside case, the European Court of Human Rights recognised the authority of states to adjudicate on questions of public morality and cultural values as compared to international tribunals, due to states’ closer contact with the context of their respective country. As a result, even if there exists diversity amongst religious or cultural standards in terms of dress conventions, states are authorised to suppress a certain degree of deviation on the grounds of protecting social norms. Yet, such suppression is liable not only to restrict the freedom right itself, but as is evident in the case of Mahsa Amini, can also invoke violence and death through the policing of dress standards.

Thus, although states enjoy considerable latitude in restricting freedom of dress, limitations on this authority do persist. The Human Rights Committee of the UN clarifies that a limitation on freedom of expression is justified only if it is provided by law and adheres strictly to the test of proportionality and necessity. In other words, with a view to limiting a right, a balance must be struck between the gain brought to the community and the curtailment of an individual’s rights by the limitation imposed. In the case of public morality, the committee further clarifies that the principles in order to safeguard public morality should not be derived from a ‘particular tradition’, but rather should comply with the conception of human rights as ‘universal’, with particular emphasis on the standard of non-discrimination.

On these grounds, the enjoyment of the right to freedom of dress is a manifestation of tolerance and diversity in a pluralist society. The right is necessary to ensure the meaningful participation, social cohesion and acceptance of difference that a democratic society aspires to achieve. As such, states are beholden to act with extreme caution and exercise diligence when limiting the right to freedom of dress in compliance with international human rights norms and standards.