In 2018, the ruling Awami League omitted the five controversial sections of the Information and Communications Technology Act (ICT) and passed the Digital Security Act (DSA). Coded into the Digital Security Act are sections that criminalize digital content that may offend popular sacred sensibilities, whether religious or nationalist. These vaguely-worded sections operate as ‘de facto blasphemy laws’ in Bangladesh.
Globally, blasphemy is broadly understood as insulting or speaking irreverently about God or anything considered sacred. In a 2017 report titled “Respecting Rights? Measuring the World’s Blasphemy Laws,” the U.S. Commission on International Religious Freedom (USCIRF) found that blasphemy laws exist in 71 countries around the world. Not all Muslim-majority countries, it’s worth noting, have blasphemy laws. The most common punishment for blasphemy is imprisonment, though a few states impose lashings, forced labor, and death penalty. The USCIRF report pointed to Bangladesh’s Penal Code’s Articles 295, 295A, and 298, which criminalize blasphemy. The new Digital Security Act reinforces those existing blasphemy laws and further endangers dissenting Bangladeshi voices, including the LGBTI+ activists.
Since the murders of two LGBTI+ rights activists in Bangladesh in 2016, the country’s LGBTI+ rights activism has been largely displaced to the virtual domain. Social media is the most popular tool for creating awareness about LGBTI+ rights as well as building safe spaces for LGBTI+ community interactions across the country. The DSA 2018 threatens LGBTI+ digital presence and organizing. For example, LGBTI+ focused writings can be deemed punishable under section 28 of the DSA 2018. The act criminalizes trans communities for using preferred gender and names where such information does not match their official IDs. Alarmingly, the act allows the law enforcement agencies to act out of suspicion, frisk, and search individuals, irrespective of their location, and seize any materials (including printed items such as books, magazines, pamphlets etc.).
The wider reactions to the DSA 2018 warned against the chilling potentials of the law. In expressing his reaction to the DSA 2018, constitution specialist Dr. Shadin Malik said, “this law is against freedom of speech.” Committee to Protect Journalists (CPJ), an international organization, urged president Abdul Hamid to not sign the act. In the letter, CPJ urged that the bill be returned to the parliament for reconsideration. Transparency International Bangladesh (TIB) opposed the passing of the DSA 2018, arguing that the DSA 2018 went against the main principles of the constitution. TIB’s then president, Dr. Iftekharruzaman said, “Section 32 could be misapplied and obstruct the right to information regarding human rights violations as laid out in Right to Information Act 2009, and this would lead to the spread of corruption and other human rights violations.” Prominent human rights activist Sultana Kamal had also expressed: “This law would adversely affect freedom of speech and right to information.”
Laws that Persecute, Not Protect
The DSA 2018 is applicable widely to all online-based communication. However, in this article, we highlight specific sections to show how the DSA 2018, particularly the blasphemy laws coded into it, can be deployed against Bangladeshi LGBTI+ community and Bangladeshi LGBTI+ citizens living abroad. The Bangladeshi LGBTI+ community is already one of the most marginalized communities in the country and faces several social and legal challenges. There is no law to protect the community from violence and harassment, and existing laws provide no avenue for community members to seek recourse. The digital blasphemy laws heighten the online insecurity of LGBTI+ people and suffocates the social struggle for LGBTI+ rights within the narrow digital closets the community members inhabit.
Section 28 criminalizes publication, broadcast, etc. of any information in any website or in any electronic format that hurts the religious sentiment or values. First offense under these charges is punishable with a maximum seven years imprisonment and/or fine of 10 lac taka (more details here).
A revised version of the infamous Section 54 of the Information and Communication Technology (ICT) Act, section 28 is the most important part of the DSA that can be used against the LGBTI+ community. For example, a website publishes a write-up in favor of sexual and gender diversity, and someone shares the article. Or someone makes a comment on that article shared by someone else. In such an incident, the website that published the article, the article’s author, the person who shared it and those who commented in favor of the article, they can all be sued under Section 28. This applies to all the websites, blogs, e-magazines, social media posts, videos, audio files and everything else that may be used to spread pro-LGBTI+ messages.
Moreover, since homosexuality is a sin according to dominant Islam, if you speak in favor of homosexuality or claim equal rights for the LGBTI+ people, a Muslim could be offended and file a case against you. It should be noted that the act does not provide any definition of the phrase ‘religious sentiment’ and opens it up for vague interpretation and misuse against the LGBTI+ community.
Section 21 criminalizes any propaganda or campaign against liberation war, cognition of liberation war, Father of the Nation, national anthem or national flag. First offense under these charges is punishable with a maximum 10 years imprisonment and/or fine of one crore taka (more details here).
Another dangerous and extremely vague section of the DSA, Section 21 contains terms that can be interpreted in any way to control even the simplest of thoughts and expressions. For the LGBTI+ community, this can have a far-reaching impact. There is an increasing tendency within the LGBTI+ community to draw inspiration from the liberation war and to associate LGBTI+ liberation with the symbols, heroes, and meanings of the war as an advocacy strategy. Many queer people claim that the persecution of LGBTI+ people goes against the values and spirit that guided the liberation war. Some may go as far as to say that the liberation of queer people is in line with the ideals of the Father of the Nation. This can trigger some sentiments among people who may claim that the Father of the Nation is maligned by such claims or that the liberation war is defamed. In fact, it could be asked as to how the “ideals” of the liberation war, as stipulated in the DSA, were deduced in the first place. Moreover, queer people tend to sometimes merge the national flag with the rainbow flag in order to show that they exist in Bangladesh. The act of merging the flags can also be considered a crime under this section.
Section 25 criminalizes publishing, sending of offensive, false or fear inducing data-information, etc. First offense under these charges is punishable with a maximum of three years and/or fine of 3 lacs taka (more details here).
Any kind of pro-LGBTI+ posts on the web often attract a slew of hate speech, trolling, and personal attacks. This is usually done with the intention to instigate LGBTI+ rights supporters to make a controversial move or say something provocative in reaction. Often such arguments end up in personal attacks, and in such a case, if the anti-LGBTI+ person feels insulted or humiliated or denigrated, he can file charges under this section. Fighting for LGBTI+ rights, for instance repealing the infamous Section 377 of the Bangladesh Penal Code that criminalizes same-sex activities, often translates to holding the state accountable. Such activities can very well be considered as tarnishing the image of the nation, and the person responsible can be sued under this law. Moreover, the law does not define the terms ‘annoy, insult, humiliate or denigrate a person’ and ‘image of the nation’ mentioned in this section.
Aside from the sections we highlighted above, there are some other noteworthy aspects of DSA 2018 that endanger the prospects of LGBTI+ activism in Bangladesh. For example, Section 4 criminalizes any out-of-country violation of the act. There’s a misconception that Bangladeshi nationals are safe to engage in LGBTI+ activism from outside of the country. But this section clarifies that if any out-of-country Bangladeshi activists engage in any pro-LGBTI+ rights activities online then their actions could be interpreted as destabilizing the Bangladeshi society, ruining Bangladesh’s image and relationship with other countries, and be sued under this law. Furthermore, Section 8 of the DSA authorizes Bangladesh Telecommunications and Regulatory Authority (BTRC) to block any website without notice if they deem that website is spreading information that violates DSA’s parameters of tolerance. Any pro-LGBTI+ website could be blocked under this section. The DSA 2018 is not only about virtual spaces and interactions. Section 43 authorizes the police to act out of suspicion, search individuals anywhere without warrants, and seize materials. It is not hard to imagine how LGBTI+ activists could be targeted and harassed using this section.
From raising voices against Section 377 to forging online communities, the Bangladeshi LGBTI+ community now has to navigate the complexities of the Digital Security Act. For majority LGBTI+ people, who experience criminalization and marginalization through state and society, the internet has been a safe refuge to express themselves. After 2016, when even traditional print media such as magazines became high-risk, Bangladeshi LGBTI+ people have resorted to voicing their stories, forming communities, and working for social change in virtual spaces. In a homophobic society, online interactions are generally open to everyday threats and harassment. With the DSA afoot, the LGBTI+ community now stands hostage to an aggrieved homophobic person’s religious, nationalist, or just personal sensibilities, which needless to say are very subjective and follow no clear definition in the DSA 2018.
A Broader Perspective
To be clear, it is not suggested that the blasphemy law sections were developed specifically to target LGBTI+ activities online or that the law will be used against LGBTI+ population only. The complex implications of the DSA 2018 must also be seen in a broader political context. Bangladesh’s current authoritarian regime does not guarantee the rule of law, and instead the regime rules by law. In some cases, the regime uses the law to intimidate certain groups (journalists, freethinkers etc.), and in other cases, the regime uses the law to silence any criticism and to punish dissenters. When charges under the DSA are met with collective pushback from civil society, the state may resort to other means. For instance, it is now feared that journalist Shafiqul Islam Kajol was a victim of forced disappearance a day after he was sued under the DSA 2018. To muddy the waters further, dominant Islamic groups can take advantage of the blasphemy laws. Although charges of offense usually come from individuals, blasphemy related cases can easily be reinscribed into existing conflicts between opposing religious or interest groups to consolidate one group’s power over another. In the recent case of Shariyat Bayati, even though an individual imam filed the charges against the Baul singer, various Islamic groups protested and demanded his arrest, deepening the existing rift between non-dominant spiritual practices and hanafi variation of Islam. Unsurprisingly, the prime minister defended the arrest of the Baul singer.
In this political reality, the digital blasphemy laws will affect LGBTI+ people disproportionately along the axes of visibility and identity, such as class, gender, caste, religion etc. For instance, a non-Bengali speaking Bangladeshi citizen (e.g. adivasi or Bihari LGBTI+ person) could be harassed, threatened, and punished with different intensity compared to a Bengali-speaker Bangladeshi under this law. Activist Pychingmong Marma suggested that the act can be “a tool of the state to stop the Jumma voices.” The threat is also different for hijra communities, who often live collectively in specific areas and are visible to the broader society. When one of them is considered an offender under the act, the rest of their respective community could also be threatened and harassed.
The blasphemy laws not only make LGBTI+ people more vulnerable, but they also encourage violence on them. Vigilante killings such as the killings of atheist bloggers or LGBTI+ rights activists do not receive fair and proper trial in Bangladesh. In such an atmosphere of impunity, the blasphemy laws give extremist groups (such as, AQIS and Ansar al Islam) the impression that the state is ideologically aligned with their homophobia and emboldens them.
A Luta Continua
The LGBTI+ community lacks resources to safeguard itself. With the passing of the blasphemy laws, the community must enhance its digital security and focus a great deal of energy to mitigate foreseeable dangers. In other words, the community is compelled to channel valuable and scarce resources away from proactive organizing for LGBTI+ rights to defensive organizing for security. In addition, the inability to freely exist, interact, and organize online adversely affects the community in many other ways, including mental health.
Unless the digital blasphemy laws are eliminated, Bangladesh’s progressive social struggles will continue to experience a chilling effect online. An ongoing High Court case is challenging the legality of Sections 25 and 31 of the DSA. The blasphemy laws also violate several international conventions to which Bangladesh is a state party, such as Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and International Covenant on Economic, Social, and Cultural Rights. Activists have to continue organizing, carefully and strategically, against Bangladesh’s digital blasphemy laws as well as all other laws that threaten and endanger the lives of not just LGBTI+ people but everyone else who believes in democracy, freedom of expression, human rights, and pluralism.
Onnokotha (অন্যকথা) is a queer collective that produces queer political writings relevant to Bangladesh and the Indian subcontinent. The members of the collective prefer to remain anonymous due to fear of persecution.
Note: An extended Bangla version of this article was first published on Bangladeshi queer archive www.mondro.org.