New Delhi: If poetry be the food of judgment, cite on. The legal fraternity has drafted the verdict decriminalising Section 377 by quoting the greats from the world of prose and poetry, thereby lending sensitivity to the battle of the LGBT community. The document is poised with citations from William Shakespeare, Arthur Schopenhauer, Oscar Wilde, Leonard Cohen and many more. News18.com brings you the poetry that made the case for the liberty of people in love.
The Verdict Starts with Johann Wolfgang Von Goethe and Others
Making a case for individual freedom, preferences and judgment, the verdict quotes the literary greats, and says that it is “not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ― I am what I am, so take me as I am”. And goes on to mention, “Similarly, Arthur Schopenhauer had pronounced, ― No one can escape from their individuality.”
In this regard, the Supreme Court found it “profitable to quote a few lines from John Stuart Mill”, which were, “but society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences”.
Emphasising on the uniqueness of the identity, the court cites William Shakespeare’s famous quote, “What’s in a name?” It says that through one of his characters in a play, Shakespeare says, “What‘s in a name? That which we call a rose by any other name would smell as sweet.” The court says that the phrase “in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called”.
Getting further deeper into the meaning, it is understood by the SC that the name may be a convenient concept for identification “but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, the identity is pivotal to one’s being…Identity is equivalent to divinity”.
Vikram Seth’s Through Love's Great Power
Literary icon Vikram Seth wrote a poetry, ‘Through Love’s Great Power’, after the Supreme Court refused to review its decision in the case of ‘Suresh Kumar Koushal and another vs NAZ Foundation and others’ in 2013.
Five years ago, the Supreme Court judgment disappointed gay rights activists and upheld the constitutional validity of Section 377, making same-sex acts an offence punishable with up to life imprisonment.
The Supreme Court said, “In Koushal, this Court rejected the Naz formulation on the ground that those who indulge in carnal intercourse in the ordinary course and those who ... [do so] against the order of nature constitute different classes. Koushal endorsed that Section 377 does not suffer from arbitrariness or from an irrational classification.”
In the context of this particular episode, the apex court cited Seth’s poetry — “Through love’s great power to be made whole in mind and body, heart and soul. Through freedom to find joy, or be by dint of joy itself set free in love and in companion hood: This is the true and natural good. To undo justice, and to seek; To quash the rights that guard the weak; To sneer at love, and wrench apart the bonds of body, mind and heart; With specious reason and no rhyme: This is the true unnatural crime.”
Oscar Wilde’s 'The Love That Dare Not Speak Its Name'
The SC said that Criminal Law Amendment Act, 1885 made “gross indecency” a crime in the United Kingdom, and was used to prosecute homosexuals where sodomy could not be proven. In 1895, Oscar Wilde was arrested under the Act for ‘committing acts of gross indecency with male persons’. During Wilde’s trial, the Prosecutor, referring to homosexual love, asked him, “What is ‘the love that dare not speak its name’?”
Wilde responded: “The love that dare not speak its name” in this century is such a great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, and such as you find in the sonnets of Michelangelo and Shakespeare.
“It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art, like those of Shakespeare and Michelangelo, and those two letters of mine, such as they are. It is in this century misunderstood, so much misunderstood that it may be described as “the love that dare not speak its name,” and on that account of it I am placed where I am now. It is beautiful, it is fine, and it is the noblest form of affection. There is nothing unnatural about it. It is intellectual, and it repeatedly exists between an older and a younger man, when the older man has intellect, and the younger man has all the joy, hope and glamour of life before him.”
Wilde was held guilty and was sentenced to two years’ hard labour and subsequently incarcerated.
Leonard Cohen’s Song 'Democracy' for Colonial Baggage
While speaking on the colonial origins of Section 377, the Supreme Court quoted lyrics from Leonard Cohen’s song ‘Democracy’ — “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 wars against disorder, from the sirens night and day, from the fires of the homeless, from the ashes of the gay: Democracy is coming…”
It further said, “An inquiry into the colonial origins of Section 377 and its postulations about sexuality is useful in assessing the relevance of the provision in contemporary times.” The Court laid down, “This provision, understood as prohibiting non-peno vaginal intercourse, reflects the imposition of a particular set of morals by a colonial power at a particular point in history.”
In order to understand the colonial origins of Section 377, it is necessary to go further back to modern English law’s conception of anal and oral intercourse, which was firmly rooted in Judeo-Christian morality and condemned non-procreative sex, said SC.
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