Law and Literature-A Study of Literary Elements in the LGBT Judgment (Section 377)

 “Any specific textual analysis is made at a particular historical moment and from within a specific culture” (Belsey 6).

As Catherine Belsey, Professor of English, Derby University, rightly says, any text is bound by history and culture during analysis. The context of the text helps in arriving at the intended meaning. Thus, it is relevant to analyze the judgment of the Supreme Court of India in the trial between Navtej Singh Johar and Union of India regarding the decriminalization of consensual adult gay sex in IPC Section 377. The judgment delivered on September 6, 2018 was both historic and culturally shocking. Thus, it is an interesting endeavor to analyze the text.

Whenever any major problem arises in the society, what we do immediately is to analyze the pros and cons of the problem and try to arrive at a solution. If we cannot arrive at a solution by ourselves, we search for possible solutions in history because most of our problems have already been discussed in the past. So, we try to know what they did in the past in the hope that it will help us deal with the present. If history does not have an answer to that question, then we go to law and we seek the help of the legal experts. What if the answer to a particular question is not found in the law books also? Here comes literature, the ever-flowing river of thoughts, full of wisdom, to give us solutions.

Literature is sometimes helpful in solving crises that cannot be solved by the law. For history and judiciary, the focus is on logic, morality, and idealism. All we can get from them are facts pointing to what is right and what is wrong. But in Literature the main concern is not the deed but the doer. It will never wrong the right. The same happens in this context as well. The five jury constitutional bench of the Indian Supreme Court made their LGBT judgments based on literary texts or quotes.

The Chief Justice Deepak Mishra begins his judgment with “I am what I am, so take me as I am” (Navtej Singh Johar vs Union of India 3 – hereafter referred as Navtej vs Union). These are lines from a moving poem, “Lover in all Shapes” by Johann Wolfgang Van Goethe. He pleads with his lover to accept him as he is. He is ready to be a fish or a horse or gold, but he cannot be so. He asks the lover, if he or she cannot accept him truly as he is, then the lover can make him his own better man. It is a typical lover’s conversation to beg the other to accept him or her with all the faults, follies and imperfections. The beginning of the last stanza of the poem is a series of musings on what the poet, the lover, cannot be. The honorable Chief Justice presents these lines in the context of the Gays seeking recognition and acceptance from the Indian society.

These lines are moving when read in the context of the poem. It is pertinent that the judge uses these words in the beginning of the judgment, in his introduction, to make clear that he favors and prioritizes humanity over law.

In order to highlight the need to respect the individuality of all sects of people, the judge has made use of Arthur Schopenhauer’s lines, “No one can escape from their individuality” (qtd. in Navtej vs Union 3). To explain and validate this, he seeks the help of John Stuart Mill, “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” (qtd. In Navtej vs Union 3). What threatens human nature is the deficiency in diversified personal preferences and impulses. Restricting one’s right to expression is equal to murdering one’s self. What constitutes self-respect is one’s own identity and individuality, over which one cannot compromise. Individuality keeps the law of nature strong.

The judge next quotes the giant, Shakespeare. The judge quotes from Shakespeare’s Romeo and Juliet: “What’s in a name? That which we call a rose by any other name would smell as sweet” (qtd. in Navtej vs Union 4). The context in which these lines appear in the play is this: Juliet is worried that the man she loves is a Montague. She struggles hard with her conflicts between her true feelings for Romeo and her knowledge that he is an enemy of her family. Then she ruminates that if and only if she sees Romeo as a Montague, it will be difficult for her to love him. Hence she decides that she will picture him just as Romeo, not as a Montague. She further questions and introspects: What is the significance of a name anyway? The name is not attached to any part of our bodies. The name cannot change who we are. Even if you call a rose by any other name, it will not change its sweet smell and will smell the same.

She tries to separate Romeo from his identity of being a Montague. She does this to justify her love for him. She does not love a Montague, who is an enemy, but she loves Romeo. Picturing him in a different perspective enables her to love him without any hurdles. Similarly, the judge wants mankind to change their way of looking at the LGBT people. Instead of looking at them as queer or LGBT, we should try to change our views. If we look at them as normal human beings like us, we can accept them, as Juliet did. This is the simple solution offered by Shakespeare to resolve issues like this.

Justice Dhananjaya Y Chandrachud begins his judgment quoting Leila Seth’s “From Denial to Freedom”: “What makes life meaningful is love. The right that makes us human is the right to love.” (qtd. In Navtej vs Union 267) It is an excerpt from a Times of India article, “A mother and a judge.” These lines tell us everything about humanity. In simple words, she makes us realize the essence of life. Without love and the right to love, we do not deserve to call ourselves human beings. Her son is a gay, and she wants him to be free in this country without the fear of getting humiliated and arrested for what he is.

Earlier, it was thought that the interpretation of law should not be tampered by any sympathy for the sufferings of others.  That was why the innumerable accounts of rape, torture and harassment suffered by the gay community people on account of law did not hold enough emotional quotient to move the court. The court turned deaf to the parents’ pleas to the court about the deep fear, profound self-doubt and the inability of their children to lead a peaceful family life. In the light of this, in Article 377, the judge makes use of the lyrics of a famous song by Leonard Cohen titled “Democracy.”

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 . . . (Cohen)

The lyrics have a refrain “Democracy is coming to the USA” at regular intervals. The song came out in an album released in 1992. The judge leaves no explanation for using the lines of the song. But it is deciphered that it relates to the 1998 anti-gay attack on Matthew Shepard in the USA; the ashes of Matthew had to be kept safe, till the time of the judgment. The parents were worried that the grave might be vandalized, and if it was buried in Wyoming, it could become a point of pilgrimage and turn into a nuisance to other families in the cemetery. After the judgment, on October 26, 2018 his ashes kept at his home till then were interred at Washington National Cathedral. The US Government enacted a law bearing his name to expand the definition of hate crimes to include those motivated by sexual orientation. Such was the plight of the gays all over the world.

The important reference in the LGBT judgment is the literature of Oscar Wilde and Alfred Douglas and the trial of Wilde for gross indecency and the conversation during the trial.

He said, ‘My name is Love’.
Then straight the first did turn himself to me
And cried, ‘He lieth, for his name is Shame,
But I am love, and I was wont to be
Alone in this fair garden, till he came
Unasked by night. I am true Love, I fill
The hearts of boy and girl with mutual flame’.
Then sighing, said the other, ‘Have thy will,
I am the love that dare not speak its name. (Douglas 23)

It is from the poem “Two Loves,” written by Lord Alfred Douglas, the lover of Oscar Wilde and published in 1894 in Victorian England. He speaks about the two kinds of loves in existence in this world. One is love that claims itself to be true love that is mutually shared between a boy and a girl, while the other is the love that dare not speak its name.

The controversial law had its origin in the Tudor period. The law prohibiting the same-sex intercourse was passed in 1533 during the reign of King Henry VIII. Numerous trials, including that of the famous writer Oscar Wilde, led to the reformation of the law in the United Kingdom after sixty long years. The Marquess of Queensberry’s son, Lord Alfred Douglas, was having an affair with Oscar Wilde. Knowing this, the Marquess left a note in the club, describing Wilde as a ‘somdomite’ which led to one of the most celebrated defamation actions in England, in which, Sir Edward Carson was able to draw from his famous witness the fact that boys could be plain or ugly, which led to the truth of establishing the charges against him. Under the Criminal Law Amendment Act of 1885, Oscar Wilde was convicted and sent to jail for two years.

In 1895, under the Criminal Law Amendment Act of 1885, he was arrested for “committing acts of gross indecency with male persons” and was sentenced to two years of imprisonment. During the trial, the prosecutor, referring to homosexual love, asked him, “What love is ‘the love that dare not speak its name’?”(qtd. in Navtej vs Union 279) to which Wilde responded,

It is in this century misunderstood, so much misunderstood that it may be described as ‘the love that dares 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 former has intellect, and the latter has all the joy, hope and glamour of life before him. (Holland, O’Connor and Hyde 201)

He speaks about what is now referred to as platonic love. Martin Luther King, Jr. observed, “the arc of the moral universe is long, but it bends towards justice” (qtd. in Navtej vs Union 282). According to the philosophy of Mr. King, the homosexuals should practice the virtue of patience and wait for the society to understand and accept their way of life. But they thought that already they had waited for many years patiently, and now it is time for them to fight for their rights by organizing pride marches, rallies, etc., and they quote King Jr. again. “I hope, sirs, you can understand our legitimate and unavoidable impatience” (Navtej vs Union 289)

Vikram Seth, the renowned Indian poet, writes in his poem:

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. (Seth 36)

Even the Bible was not left out from being quoted in the judgment because the Bible played an important role in creating the modern English law. The Christian morality condemns non-procreative sex. Though Jesus himself does not refer to homosexuality anywhere in his preaching, the ‘Holiness Code’ found in Leviticus says, “You shall not lie with a male as with a woman. It is an abomination” [18:22] and also indicts, “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them” [20:13].

Genesis [18:20] has the story of “Sodom and Gomorrah” wherein the angels punished sodomites with blindness and this is considered to be the etymology of the word, ‘sodomy’. The United Kingdom acted upon the Wolfenden Committee Report by reforming the Sexual Offences Act in 1967, which abolished penal offences involving same-sex relationship between consenting adults. It was even then supported by the Church of England that proposed that there must remain a realm of private morality and immorality, which is not the law’s business. But Independent India continued to enforce a law imposed by an erstwhile colonial government, a law that has been undone by the same government in its own jurisdiction.

Justice Muralidhar quotes Jawaharlal Nehru, “Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion” (Navtej vs Union 293). This was ‘the spirit behind the resolution’ of which Nehru spoke passionately about, the nation’s assurance to its citizens, a life of dignity and non-discrimination. Here we can connect what every rational, liberal and free-minded individual holds in his mind, that laws are made for us, only for us.

The factors re-guaranteed by the Judgment was the right to sexuality; sexual autonomy; the choice of a sexual partner; freedom of expression; privacy; intimacy; sexual and mental health and the right to live with dignity.

Constitutional Violations under Section 377

• Article 14: It enshrines the principle of equality as a fundamental right, and mandates that the state shall not deny to any person, the equality before law within the territory of India. It guarantees the right of equal treatment to all people in this country.
• Article 15: It prohibits the state from discrimination against any citizen on the grounds of religion, race, caste, sex or place of birth. It guarantees protection to those who had suffered historical disadvantage of any nature.
• Article 19(1) a: It guarantees freedom of expression to all the citizens. LGBT persons express their sexual orientation in certain implicit ways. One such way is engaging in intimate sexual acts that are mentioned in Section 377.
• Article 21: It provides that no person shall be deprived of his life or personal liberty. The right to life and liberty affords protection to every citizen or non-citizen, irrespective of their identity or orientation, without any discrimination. It is also now recognized that the right to privacy is an intrinsic part under Article 21.

The concluding lines of the judgment are solemn. Those lines are:

History owes an apology to the LGBTQ community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. They were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Rights guaranteed by the Constitution. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’. (Navtej Singh Johar vs Union of India 493)

The presence of the literary elements in the judgment, as highlighted above, has made a difference. One can infer that literature has influenced and catalyzed the judgment in favor of humanity.

Works Cited

Bataille, Georges.  Literature and Evil. London: Marion Boyars Publishers, 1976. Print.

Belsey, Catherine. “A Talk with Catherine Belsey.” Interview by Antal Bokay. Hungarian Journal of  English and American Studies (HJEAS) 3.1 (1998): 19-27. Print.

Cohen, Leonard. “Democracy.” Online video clip. YouTube. YouTube, 11 March 2010. Web. 10 Oct. 2019. https://www.youtube.com/watch?v=DU-RuR-qO4Y

Douglas, Alfred. The Collected Poems of Lord Douglas. London: Secker, 1919. Print.

Holland, Merlin, John O’Connor and H. Montgomery Hyde. The Trials of Oscar Wilde. Samuel French Ltd., 2014. Print.

"'I Am What I Am, So Take Me As I Am': What Judges Said In Their Landmark Verdict Against Section 377." News18. N.p., 6 Sep. 2018. Web. 10 Oct. 2019.

Luther King, Martin. “Letter from a Birmingham Jail, 1963.” The Martin Luther King, Jr. Research and Education Institute, Stanford University, 11 July 2017. Web. 10 Oct. 2019.
https://kinginstitute.stanford.edu/king-papers/documents/letter-birmingham-jail

"Section 377: Shakespeare's Romeo and Juliet and Goethe Star in CJI Judgment." India Today. N.pag., 6 Sep. 2018. Web. 10 Oct. 2019.

Seth, Vikram. Collected Poems. London: Orion Publishing Co., 2016. Print.

The Bible. Authorized King James Version, Oxford University Press, 1998. Print.

"The Bible and Homosexuality." En.wikipedia.org. N.p., 2019. Web. 10 Oct. 2019.

"The Constitution of India." India.gov.in. N.p., 2019. Web. 10 Oct. 2019.

The Supreme Court of India, Writ Petition (Criminal) No. 76 of 2016, Navtej Singh Johar versus the Union of India, 6 Sept. 2018. Print.