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The love that dare speak its name

As the ruling against Section 377 shows, law and literature enrich and illuminate each other when their paths cross

Oscar Wilde’s (left) trial served as a turning point for anti-LGBTQ+ laws; and William Shakespeare, a favourite among jurors.
Oscar Wilde’s (left) trial served as a turning point for anti-LGBTQ+ laws; and William Shakespeare, a favourite among jurors.

In 1939, W.H. Auden compared law with love in a poem. “Like love we don’t know where or why," he wrote in Law, Like Love, “Like love we can’t compel or fly." The metaphor felt pertinent last week as a five-member bench of the Supreme Court, led by Dipak Misra, the Chief Justice of India (CJI), allowed millions of Indian citizens the choice to love as they will. Section 377 of the Indian Penal Code, one of the worst legacies of British rule that has lasted since 1861, was deemed unconstitutional in so far as it penalized adults for having consensual sexual relationships.

Appropriately, the opening verdict, by Misra and Justice A.M. Khanwilkar, began with two towering names of the 19th century. “I am what I am, so take me as I am," the ruling opened with a line from a poem by German writer J.W. von Goethe (1749-1832), followed by the words of another German thinker, Arthur Schopenhauer (1788-1860). While the German embassy in India noted these mentions with delight on Twitter, the other judges went on to cite several well-known names in the course of the 495-page ruling. J.S. Mill, Jeremy Bentham, William Shakespeare, Leonard Cohen, Vikram Seth—the text was speckled with references to many luminaries.

The right effect

In a lecture delivered in Chennai last year, A.P. Shah, former chief justice of the Delhi high court, delineated the affinity between law and literature down the ages. Instrumental behind an earlier high court ruling that decriminalized Section 377 in 2009, Shah noted several instances from popular culture that capitalize the dramatic tensions of the courtroom, his favourite being The Pickwick Papers by Charles Dickens. He then went on to mention Harper Lee’s classic, To Kill A Mockingbird, Steven Soderbergh’s Hollywood hit Erin Brockovich, and the popular television series Suits, as examples of law’s intersection with popular culture, among others.

The citation of literary allusions is not uncommon in India’s apex court, though it depends on the temperament of individual judges, says Delhi-based lawyer and writer Gautam Bhatia on email. “A literary allusion at the right place can make for brilliant effect. (The celebrated British judge) Lord Denning wrote that a lawyer with knowledge of literature and history is like an architect, and a lawyer without it is like a mason," he adds. “But too many allusions can end up making a judgement sound forced and pretentious, which is unfortunately far too common with some of the judges of the Supreme Court."

In the case of the ruling on Section 377, some of the more familiar names seem to have been dropped with half an eye on the common reader, who may try to make sense of the legalese to get a grip on its essence. Tracing the intellectual and social history of anti-LGBTQ+ legislations in Asia and other parts of the world, the text covers a wide, though often dense, ground. The occasional encounter with a familiar name—Oscar Wilde, for instance—is reassuring for those not well-versed with the labyrinths of legal history.

Involved in one of the most high-profile cases involving homosexuality in Britain in 1895, Wilde’s presence in a judgement abolishing an anti-LGBTQ+ law is perhaps inevitable. He appears for the first time in Justice R.F. Nariman’s ruling, albeit with reference to a line from a poem by his lover, Lord Alfred Douglas: “The love that dare not speak its name." Six decades after his historic trial in 1895—which sent Wilde into prison, exile and eventual death—Britain would begin to amend its laws against homosexuality. In 1957, the Wolfenden Committee submitted a report arguing in favour of decriminalizing homosexuality. It would take another 10 years for the amendment to come through.

The process of making reparations is long and ongoing. As Justice Indu Malhotra wrote in her ruling in the Section 377 case, history owes an apology to the LGBTQ+ community. It’s no surprise that as late as in 2017, the UK passed the Policing and Crimes Act—an amnesty law to pardon persons cautioned or convicted under legislations that outlawed homosexual acts. A notable name among the latter was scientist Alan Turing, who was subjected to chemical castration as punishment for his homosexuality in 1952.

Back to the Bard

While all four judgements by the five judges draw on jurisprudence and legal precedents, their effect is most palpable to non-expert readers when their gaze is drawn to everyday realities.

A moving passage, for instance, appears in Justice D.Y. Chandrachud’s ruling, where he quotes the late Justice Leila Seth’s 2014 testimony published in The Times Of India. Writing as the mother of writer Vikram Seth and a former judge, she makes a humane case for the reading down of Section 377. A few pages later, her argument is bolstered by her distinguished son in a poem (Through Love’s Great Power) that he wrote after an earlier bench of the Supreme Court had reinstated Section 377 in 2013.

But few writers can surpass the number of poetic lines Shakespeare has contributed to legal discourse across the anglophone world. A column by Prospero in The Economist (“Why lawyers love Shakespeare", 8 January 2016), dwells on the extent to which the Bard has infiltrated legal documents through the centuries.

As a playwright who took a special pleasure in exploring legal conundrums (think of The Merchant Of Venice, Measure For Measure, All’s Well That Ends Well), Shakespeare is ubiquitous in British jurisprudence. Prospero lists a line from Hamlet in a 2008 case of boundary dispute at Britain’s high court (“a little patch of ground that hath no profit in it but the name"). Another bit from the same play (“I here proclaim was madness") was quoted in a French court to discuss criminal liability. The Complete Works Of William Shakespeare has clearly been well-thumbed by generations of advocates and judges, even across the Atlantic. A graph in The Economist put him ahead of Lewis Carroll and George Orwell, in a list of authors most cited in opinions written by the nine US Supreme Court justices then in office.

While the proliferation of literary allusions in legal literature may be evident, “there is no real training in literary texts," says Bhatia, in most traditional courses for students of the subject in India. “Some universities and law schools offer literature as an elective course," adds Saptarshi Mandal, assistant professor at O.P. Jindal Global University in Sonipat, Haryana. With more liberal arts universities coming up, hopefully the traffic between the two disciplines will become more organic.

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