“I just want to finish my graduation and then I will run away from this hellhole,” a Facebook friend from Dhaka who describes herself as a hardcore lesbian wrote to me once.
“Daydreaming about my mother being aware of and accepting my sexuality is one of my favourite pastimes. When I tried to come out to my family at the tender age of 16, they were devastated.” These are some lines from a write-up published on Dhaka Tribune.
These are a few of the faceless people who live their lives in the shadows. One among them is Arundhati Katju, a civil and criminal litigator in India, known for her role as lead co-counsel in the historic Supreme Court striking down of Section 377 of the Indian Constitution (decriminalization of homosexuality in India) on September 6, 2018.
After the judgment, she made waves when she and her co-counsel Menaka Guruswamy came out as a couple and were named amongst TIME’s 100 most influential of 2019.
Arundhati believes in the power of stories to change the law, something reflected in the duo’s legal strategy. They decided to bring in LGBTQIA+ Indians to court so humanize them instead of just telling their stories, and affording judges the opportunity to connect with individuals and understand their struggles.
I started this write-up with some real life stories of people from Bangladesh who are homosexuals. Why? Because, like Arundhati, I also believe in people and in the power of their stories. Love is Love. No matter who you fall in love with. Every love story is unique, every story matters. And every person should have the right to choose who they want to be in love with.
Section 377 of the penal code enunciates: “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 term which may extend to 10 years, and shall also be liable to fine.”
Thus, Section 377, introduced during the British rule of India, criminalizes sexual activities “against the order of nature,” arguably including consensual same-sex acts. Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the consensual penetrative sexual acts engaged in by homosexuals, thereby criminalizing their sexual expression and identity.
But Arundhati pointed out that Section 377 was never only about carnal intercourses rather it was actually about the right to citizenship. And the right to citizenship that’s been guaranteed to us under the constitution.
One of the fundamental findings that the judgment (decriminalization of homosexuality in India) has is that it says that citizens of India enjoy, under the right to life, the freedom of choice. You have the right to choose.
The Constitution of Bangladesh, as originally drafted, also clearly protects the rights of equality and non-discrimination. But sexual orientation is not an enumerated ground of prohibited discrimination under our constitution.
However, in recent years the government has taken a landmark decision to recognize the rights of intersex people (known as hijra) and approved them as the third gender along with male and female. So, it may be the right time to think out-of-the-box with regard to reframing Section 377 of the penal code of Bangladesh and decriminalizing homosexuality.
Arundhati’s journey towards decriminalizing homosexuality in India was not an easy one. It won’t be any easier for us either. But I want to conclude this article with Arundhati’s words: “Sometimes you win, and then you lose. You have to go back to the drawing board and really think ‘how do I need to change the narrative?’ and ‘how do I need to change my own thinking about a certain issue to get to the country that I want to live in?”
Farzana Hussain is a lawyer and human rights activist; she writes from London.