Your
Advocate
Q.
Dear lawyer, I want to know about the stand of Bangladesh's law and
order system on "Homosexuality". It is important to know if
Bangladesh still has laws that go against homosexuals. I hope you would
give me a detailed answer to this question. I mean can homosexuals be
prosecuted in Bangladesh solely on grounds of their sexuality?
Tanveer On E-mail.
Your
Advocate: The stand of Bangladesh on homosexuality is very
clear. This is considered to be a serious offence affecting private
morality of persons and is strictly prohibited by law. Section 377 of
the Penal Code says- "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 be liable
to fine. Explanation: Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section."
Once you go through
the law quoted above, I hope, you will get the answers of your queries.
Law is so clear on this point that a plain reading will at once lay
bare its spirit, nature and intent. This being a penal clause providing
punishment it would not be difficult for you to understand that there
cannot be any punishment/penalty without prosecution. Therefore, prosecution,
being necessary corollary, will follow the charge of unnatural offence
of any kind including homosexuality.
It follows, therefore,
that in Bangladesh there is law that goes heavily against homosexuals
and that homosexuals are liable to prosecution on ground of their sexuality
alone.
The answers to the queries patent in your words are sought to be so
far given. But in view of the overtone of your query, which is suggestive
of oddly curious position of Bangladesh in this regard, I feel like
adding a few more words. As I understand, you have indicated the legal
position touching upon the question of private morality of consenting
adults. You are not unaware of the nature and kind of our society, which
is, essentially tradition-bound, conservative and non-permissive. The
conservative and traditional attitude towards sex-.morality is not only
true of Bangladesh it is true of the overwhelming majority of the countries
of the world. In the advanced societies of the West conservative sentiments
and values are still found to influence decisions at all levels. Therefore,
there must be reflection of the society in its laws. Where sexual behaviour
offending against natural order is an offence, consent is immaterial.
In case of sexual behaviour contemplated in Section 377 of the Penal
Code question of 'consenting adults', to my mind, is of no avail. There
is no, at least I have not come across any, decision of the Supreme
Court on this point.
In many western
countries homosexuality is no more an offence. But gay rights, same-sex
civil marriage, rights of the same-sex couple's etc. are concepts that
are currently gaining ground in those countries not yet widely sanctioned
by the society or law. With the peculiar background of homosexuality
in the most advanced societies you can easily guess, instead of being
bemused the position of homosexuality in a society where sex is by and
large, a taboo.
Your
Advocate M. Moazzam Husain is a lawyer of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
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