Two years after Section 377: Judgement that said it with poetry and words from literature

Team Udayavani, Sep 6, 2020, 11:50 AM IST

New Delhi: Two years ago, the Supreme Court decriminalised homosexuality, using the words of Goethe and Leonard Cohen, Shakespeare and Oscar Wilde to deliver a historic judgment that signalled freedom for millions of people in the LGBTQ+ community.

The 495-page path-breaking verdict, delivered by a five-judge constitutional bench headed by then chief justice Dipak Misra on September 6, 2018, took the help of philosophers and poets to read down parts of a 158-year-old colonial law under Section 377 of the IPC which criminalised consensual gay sex.

So be it German writer-philosopher Johann Wolfgang von Goethe’s famous words “I am what I am”, British poet Lord Alfred Douglas’ “The Love that dare not speak its name” or Canadian singer-poet Leonard Cohen’s “Democracy is Coming”, the document was full of evocative words from the greatest in the world of literature and thought.

The bench – that also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra – delivered its verdict in four separate but concurring judgements.

Former CJI Misra set the ball rolling and started his and Justice Khaniwlkar’s judgement by quoting Goethe’s “I am what I am, so take me as I am” and German philosopher Arthur Schopenhauer’s “No one can escape from their individuality”.

In a recently launched book, “Sex and the Supreme Court”, a collection of essays on how the law is upholding the dignity of Indian citizen, editor of the book Saurabh Kirpal interprets the usage of famous quotes and phrases — along with other passages — given by the judges.

“The thrust of the judgement of the Chief Justice was to recognize that a person of alternative sexuality had the right to choose their own partner,” Kirpal, who was one of the lawyers for the petitioners in the case, in his essay, “Pride versus Prejudice: The Struggle against Section 377”.

The former CJI’s judgement was also peppered with other phrases and quotes of literary greats, including English philosopher-economist John Stuart Mill. William Shakespeare’s famous phrase “What’s in a name?” was quoted to convey that “what really matters is the essential qualities of the substance and the fundamental characteristics of an entity”.

Taking a cue from Justice Misra, Justice Nariman started his judgement with “The love that dare not speak its name”, the famous words by Alfred Douglas, the lover of well-known 19th century Irish poet Oscar Wilde.

The phrase, from the 1890s poem “Two Loves”, is believed to be mentioned in Wilde’s trial for ‘gross indecency’, a charge which criminalised homosexual people. “The Love that dare not speak its name” is usually interpreted as a euphemism for homosexuality — something that Wilde denied.

Wilde was put on trial in 1895 after the details of his affair with men were made public. He was sentenced to two years imprisonment.

Homosexuality was a criminal offence in England in the 19th century. It was legalised in England and Wales in 1967, and in Scotland and Ireland in 1980 and 1981, respectively.

According to Kirpal, the poem, even though disavowed by Wilde, “speaks of the ignominy of homosexuality that people dare not even mention its existence”.

“The poem captures the essence of the judgement of Justice Nariman — a judgement with rich historical context but at the same time the one that looks towards the future. It is a judgement that neatly wraps its value judgements in constitutional theory and practice,” he adds.

Justice Chandrachud began his judgement with the moving words of the late Leila Seth, the first woman chief justice of a state high court and mother of poet and gay rights activist Vikram Seth, “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane. To acquiesce in such criminalization or, worse, to recriminalize it, is to display the very opposite of compassion…”

He borrowed lines from Cohen’s 1990s hit-song “Democracy” to make his point — “It’s coming through a hole in the air … It’s coming from the feel that this ain’t exactly real, or it’s real, but it ain’t exactly there.. From the fires of the homeless From the ashes of the gay: Democracy is coming…”

According to Kirpal, democracy is something that often comes through ‘a hole in the air’, that is, through the small acts of individuals whose life needs to be changed.

The song, he says in the book, seems to capture the ideas of democracy as a participative concept rather than the majoritarian juggernaut that it is sometimes understood to be.

Recalling his feelings on judgment day, hotelier Keshav Suri, one of the petitioners in the case, says in the book that he was so happy he could have kissed everyone in the court that day.

“The verdict was delivered with such beauty and purity that it made all the struggle worth it. Even British philosopher John Stuart Mill was quoted: ”But society has now fairly got the better of individuality..” It made my heart swell with joy. No one could make us ashamed any more. We didn’t have to fear the law. The country’s highest court was standing with us,” Suri writes.

Besides Suri, hotelier Aman Nath, dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia and business executive Ayesha Kapur were among the main petitioners in the case. In 2016, they successfully petitioned the Supreme Court to reconsider its own ruling.

In 2013, the apex court had cancelled a Delhi High Court order that decriminalised homosexuality by overturning the outdated law, enacted in 1860 at the behest of Lord Thomas Babington Macaulay. The court said it was up to parliament to take a call on scrapping laws.