2 years earlier on the day, the Supreme Court decriminalised homosexuality, utilizing the words of Goethe and Leonard Cohen, Shakespeare and Oscar Wilde to provide a historic judgment that signalled flexibility for countless individuals in the LGBTQ community.
The 495- page path-breaking verdict, provided by a five-judge constitutional bench headed by then chief justice Dipak Misra, took the help of theorists and poets to read down parts of an 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 popular words “I am what I am”, British poet Lord Alfred Douglas’ “The Love that attempt not speak its name” or Canadian singer-poet Leonard Cohen’s “Democracy is Coming”, the file had lots of expressive words from the greatest on the planet of literature and thought.
The bench, that also made up Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, delivered its decision in 4 different however concurring judgements.
Previous CJI Misra set the ball rolling and started his and Justice Khaniwlkar’s judgement by estimating Goethe’s “I am what I am, so take me as I am” and German theorist Arthur Schopenhauer’s “No one can leave from their individuality”.
In a recently introduced book, “Sex and the Supreme Court”, a collection of essays on how the law is promoting the self-respect of Indian person, editor of the book Saurabh Kirpal translates the use of famous quotes and expressions– together with other passages– provided by the judges.
” The thrust of the judgement of the Chief Justice was to acknowledge that a person of alternative sexuality had the right to select their own partner,” Kirpal, who was one of the lawyers for the petitioners in the event, 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 Engish philosopher-economist John Stuart Mill.
William Shakespeare’s famous expression “What’s in a name?” was estimated to convey that “what really matters is the essential qualities of the substance and the fundamental attributes 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 fan of widely known 19 th century Irish poet Oscar Wilde.
The phrase, from the 1890 s poem “2 Likes”, is thought to be mentioned in Wilde’s trial for ‘gross indecency’, a charge which criminalised homosexual individuals.
” The Love that dare not speak its name” is generally translated as a euphemism for homosexuality– something that Wilde rejected. Wilde was put on trial in 1895 after the details of his affair with men were revealed. He was sentenced to 2 years imprisonment. Homosexuality was a criminal offence in England in the 19 th 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, although disavowed by Wilde, “mentions the ignominy of homosexuality that people attempt not even discuss its existence”.
” The poem records the essence of the judgement of Justice Nariman– a judgement with rich historical context however at the exact same time the one that looks towards the future.
It is a judgement that neatly covers its value judgements in constitutional theory and practice,” he includes.
Justice Chandrachud began his judgement with the moving words of the late Leila Seth, the first female chief justice of a state high court and mother of poet and gay-rights activist Vikram Seth, “What makes life significant is love. The right that makes us human is the right to like. To criminalize the expression of that right is exceptionally terrible and inhumane. To acquiesce in such criminalization or, even worse, to recriminalize it, is to display the extremely opposite of compassion.”
He borrowed lines from Cohen’s 1990 s hit-song “Democracy” to make a point– “It’s coming through a hole in the air.
Kirpal, democracy is something that typically comes through ‘a hole in the air’, that is, through the small acts of people whose life requires to be changed.
The song, he states in the book, seems to capture the concepts of democracy as a participative concept instead of the majoritarian juggernaut that it is often comprehended to be.
Recalling his sensations on judgment day, hotelier Keshav Suri, one of the petitioners in the event, states in the book that he was so pleased he might have kissed everyone in the court that day.
” The verdict was provided with such appeal and purity that it made all the struggle worth it. Even British thinker John Stuart Mill was priced quote: ‘However society has now relatively overcame uniqueness’ It made my heart swell with joy. Nobody might make us ashamed any more. We didn’t have to fear the law. The country’s greatest court was standing with us,” Suri writes.
Besides Suri, hotelier Aman Nath, dancer Navtej Jauhar, reporter Sunil Mehra, chef Ritu Dalmia and company executive Ayesha Kapur were amongst the main petitioners in the case.
In 2016, they effectively petitioned the Supreme Court to reassess its own judgment.
In 2013, the apex court had actually cancelled a Delhi High Court order that decriminalised homosexuality by reversing the out-of-date law, enacted in 1860 at the behest of Lord Thomas Babington Macaulay.
The court stated it was up to parliament to take a call on ditching laws.