Written by Ibtisam Ahmed.

The South Asian subcontinent saw a renewed interest in engaging with colonial history in 2017, as India and Pakistan celebrated 70 years since gaining independence from the British Empire.

In a year where the complexities and violence of the past are being swept aside for the sake of niceties and good political visuals, it is extremely important to remember that the next few months are critical in engaging with ongoing oppressions that still exist as colonial hangovers. In particular, the April 2018 Commonwealth Heads of Government Meeting (CHoGM) is going to be a key battleground for one particular aspect of colonial legacy that needs to be reckoned with – the criminalisation of same-sex intimacy under Section 377.

Section 377 was introduced in then-British India (now India, Bangladesh and Pakistan) in 1860 as a means to police acceptable desire. In an attempt to implement a vision for utopia dictated by Victorian Christian values, the British ruled that forms of intimacy that did not adhere to “normal” conducts of one man and one woman in one (married) relationship were to be penalised. In the case of physical relationships, this strictly meant that anything that was not geared towards having and raising children would be outlawed.

Starting in a region that was rich and diverse in its understandings of human interaction, Section 377 was devised as a response to what was seen as the sinful decadence of having an acceptance of different sexualities and genders. Bengal played a distinct role in this. The Hijra community was referenced in many House of Commons speeches and documents when arguing against the traditional “inferior natures” of the Indian subcontinent. Indeed, gender diversity could not be banned outright although the Criminal Tribes Act did attribute immorality to the notion. Ironically, of course,  this celebration of non-binary third genders by Bengalis would be seen as a victory for progressive modern standards in the West today – and so it would be called when the Bangladeshi Government took steps to constitutionally recognise and protect the third gender in 2010. By contrast, the toxicity of imperial rhetoric against sexuality was far more effective and continues to be an oppressive law.

Since gaining independence in 1971, Bangladesh has maintained Section 377 as part of its renewed penal code. A region that, 157 years ago, had a vivid multitude of ways to conceptualise and embrace love and attraction, has now become the socially conservative utopia that the British Raj had imagined – in reality

In theory, Section 377 was not aimed at any specific group of people. Anyone caught in a relationship that was not conventional by British standards could be subject to the penalty of imprisonment and a fine. In practice, the picture was very different, due to one simple logistic problem. There was no way to actually monitor such a law short of regularly checking in on people in the privacy of their own bedrooms, unannounced. Therefore, as the law became part and parcel of the penal code, the authorities had to figure out a way to actually enact it. A viable solution was targeting anyone who engaged in homosexual relations. Simply put, people of the same sex could not bear any children through relationships. This meant that any intimacy they expressed could be punishable under 377. Thus, a law that was initially introduced to target carnality more widely – indeed, the words “carnal desire” are explicitly mentioned in the clause itself – became a means of discriminating against one part of the community.

It has been 157 years since Section 377 was introduced in the subcontinent. The first 87 years were under British rule, allowing the law to become firmly entrenched. The drawback to having many different approaches to understanding sexuality and gender meant that there was no singular narrative that could be used to challenge the ruling. Additionally, while non-heterosexual relationships were at the very least tolerated, there were still regions that carried levels of social stigma even in the pre-colonial period. As a result of this, the mainstream discourse shifted from one of accepting diversity, even if done so begrudgingly, to one which punished difference and dissent.

In the 24 years that Bangladesh was a part of Pakistan after the fall of the British Raj, Islamic nationalism was the driving force of political reform and consolidation. Although some aspects of the imperial penal code were removed, Section 377 remained on the books as it was considered consistent with the brand of political Islam that was the status quo. Never mind the fact that the historical Sufism of Bengal and the rich connections with Hinduism meant that homosexuality had been an organic part of society in Bangladesh (then-East Pakistan); decisions regarding jurisprudence and legality were made in the western wing.

Since gaining independence in 1971, Bangladesh has maintained Section 377 as part of its renewed penal code. A region that, 157 years ago, had a vivid multitude of ways to conceptualise and embrace love and attraction, has now become the socially conservative utopia that the British Raj had imagined – in reality, a dystopia for its citizens. Queer sexualities are completely illegal, and genders outside the male-female binary are openly discriminated against. In the tradition of underground subversion that Bengal was famous for under the Raj, the queer community still forged strong links. It was an underground scene that was beginning to grow and create safe spaces for many isolated individuals. Unfortunately, these sparks of hope would not last.

Activism in these areas is an endeavour fraught with danger. There had always been the risk of violence, but the recent spate of Islamist extra-judicial murders has had a heavy toll. Xulhaz Mannan and Mahbub Rabbi Tonoy, two brave voices who had been fighting for equality, were killed in 2016. The subsequent silence has been deafening, as many other activists in the field have either fled abroad or gone into hiding. A community that had at least been surviving discreetly through the creation of networking and internal solidarity is now in danger of completely being shut off.

This is where the perverse colonial nostalgia of 2017 and the CHoGM agenda of 2018 play a crucial role. There has always been a global trend of ignoring the atrocities of imperialism and the continuation of links forged by a shared history of conquest via the Commonwealth of Nations is by no means without criticism. Yet, even in a platform that perpetuates the myth of the kindly West and creates dynamics of neo-colonialism, there is the potential of postcolonial revolution. CHoGM 2018 will be the last meeting for the next 4 years in which the potential to discuss LGBTQ+ rights exists. Malaysia will be hosting the 2020 edition of the biennial meeting and have already rejected the possibility of even referring to queerness in its agenda.

Grassroots organisations from around the Commonwealth have not let the importance of 2018 escape their notice. The Commonwealth Equality Network consisting of LGBTQ+ rights and advocacy groups from 36 countries – all of whom continue to have Section 377 or a version of it as part of their statutes – has made a strong pledge to make sure that the British Government acknowledges its dark past and moves to correct it in conjunction with the groups in question. Bangladesh is represented in this project by the Bandhu Social Welfare Society, an NGO which has been working for the past 15 years for greater rights for the Hijra community, gay men and lesbians in the country.

It needs to be remembered that this is an extremely tricky space to navigate. On the one hand, the groups in the Commonwealth Equality Network are all effectively illegal in their home countries and cannot rely on their own legislatures for support. On the other hand, they do not want CHoGM 2018 to become an exercise in the white saviour complex with the UK getting all the plaudits for cleaning up a mess they created in the first place. Therefore, while they are unambiguous in their gratitude for support from other LGBTQ+ groups worldwide, such as the Kaleidoscope Trust (set up in London to empower queer activism in other parts of the world), they are wary about the multifaceted relationships with Government.

In order to tap into the postcolonial emancipatory potential of this platform, it is extremely vital that the dialogue that takes place going forward does not become monolithic. Bangladesh is but one of 36 countries in this group. (In total, there are 72 countries where homosexuality is a criminal offence.) Even within its own borders, the queer community is diverse, and intersects with different religions, classes, geographies and traditions. To authentically map that diversity globally means to celebrate it, not channel it into a single vision of acceptability. That is where Section 377 came from in the first place; its dismantling must be its anti-thesis, a manifold embodiment of the richness that once existed before colonialism plundered, polluted and stifled.

Ibtisam Ahmed is a third-year Doctoral Research Student at the School of Politics and IR, the University of Nottingham. He tweets @Ibzor. This article was first published on Shuddhashar and can be found here. This piece was originally written in 2017. As such, the references to years and dates correspond to last year. There is also an update with regards to the Commonwealth membership – there are now 53 countries of which 37 criminalise homosexuality after the return of Gambia in February 2018. Image credit: CC by Wikipedia Commons.