ANALYSING THE ROLE OF LITERATURE IN THE 377 JUDGEMENT

Introduction

On 6th September 2018, the decision of Navtej Singh Johar v Union of India[1] marked a historic victory for the Lesbian, Gay, Bisexual, Transgender (“LGBTQ”) community.[i]The Supreme Court finally overturned section 377 of the Indian Penal Code after a seventeen-year hiatus. This decision struck down the 1860 law criminalising the lives of the people that belonged to LGBTQ community.

This decision marked a fundamental change in the social structure of India. It gave legal identity to 2.5 million people and recognised them for their individuality, who for years were punished for just being born with a particular sexuality. This aspect of understanding these emotions of all the people of the community was remarkably communicated through magniloquence of the judgement. It was not written using cold logic, but with the emotional force after understanding the suffering which was inflicted on the LGBT community. There is no better time to celebrate and remember this decision than the pride month. The author has highlighted the different pieces of literature employed in the judgement and its implications, through this paper.

Justice Deepak Misra’s Judgement

In this judgement, every judge on the bench has drawn inspiration from literature and used it to write the judgement. French sociologist Pierre Bourdieu stated “that law, which though he considered to be strictly rational, is actually nothing but an act of social magic that actually works due to the magic words which are used in the law.” He says that law, which is expressed in words, are not merely text but have the power to connect with reality and change it. By providing legal recognition to the LGBTQ+ community, this decision sparked magic.

Justice Deepak Misra’s judgement starts with Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ―I am what I am, so take me as I amThe line is from ‘Love in all guises’ (Liebhaber in allen Gestalten), a poem on love. It is the beginning of the very last stanza, and ends a series of musings on what the writer, the lover cannot be.[ii] In the concluding lines, the lover makes a humble and heart-breaking admission that he is only what he is. He wants his lover to recognise this individuality and accept him for who he is. Though this was written in 1817, these lines still have an overshadowing impact on the LGBTQ community; it forms the basic theme and outline of the entire judgement. The lines best describe the situation of this community. When the Judge read these lines in open court it gave a clear image to all the people present in court, as to whose favour the judgement would be in.

It starts with ‘Not for nothing’ which emphasises on the individual being unique and the reason he commences with this line is that it sums up the essence of the judgement, that one cannot be punished for just being ‘who they are’. That cannot be a crime. Justice Misra also talks about how denial of this identity is a self-expression of death; one cannot replace this identity by calling it something else as it defines oneself.

Further he also quotes Arthur Schopenhauer and says “No one can escape from their individuality”. Identity of a human is pivotal to one’s being. Honour and the freedom of living being, are crucial facets of life which are denied to the LGBTQ. By emphasizing on this statement; he acknowledges that it cannot be an innate choice which can be punished, since it is pertinent to their natural being, and they are born with such sexuality. The identity of an individual is paramount to his existence. Sexual orientation is a natural corollary to gender identity which shall be protected under Article 21 of the Constitution. The Constitution is the only source by which all citizens of India derive their rights, and it recognises this identity and includes it. Hence, this part of the personality of a person has to be respected and not looked down upon. Destruction of this individual identity would amount to destroying the individual’s dignity that cumulates the values of privacy, choice, freedom of speech and other expressions.

By quoting John Stuart Mill’s essay “On Liberty”, he asserted “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.” It's conceivable that Justice Misra is quoting him to rationalise why the decision in Suresh Kumar Koushal and another v. NAZ Foundation and others was unfavourable to the community. Although the society has begun to recognise and accept the LGBTQ+ community, there are still some people who are not willing to embrace them. As a result, one should understand such people's perceptions and work to change it, so that a brighter world could be established.

To effectively comprehend this, he concludes his decision by saying, "Let us move from darkness to light, from bigotry to tolerance, and from the winter of mere survival to the spring of life as the herald of a New India to a more inclusive society," implying that now is the time to change and make this community feel inclusive.

Justice Misra also quotes a line from Shakespeare’s famous play Romeo & Juliet “What’s in a name? That which we call a rose; By any other name would smell as sweet.” In the play, Juliet is not allowed to associate with Romeo (her lover) because he is a Montague. In a basic sense, what really matters is the essential qualities and fundamental characteristics of the person and not the name by which they are called. Understanding it from a modern perspective, one can change the name, and refuse to accept the community but their core identity still remains the same. Therefore, just because a person is homosexual does not change him as a person, his individuality remains the same. If one espies the people he has quoted, it becomes clear that the majority of them were either secretly or overtly homosexual, or had authored works about homosexuality.

Justice Nariman and Justice Malhotra’s Judgement

Further, Justice RF Nariman quoted a couplet by Lord Alfred Douglas, the lover of Oscar Wilde which said, "The love that dare not speak its name". He very tactically quoted Oscar Wilde who identified as homosexual himself.

Justice Malhotra started by “history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. This apology was highly appreciated by the people of this country, especially the LGBTQ community. Though, she did not use any consistent form of particular literature or literary device, her judgement in itself can be considered ‘literature’ since the style in which she wrote her judgement was unique. By using an apologetic tone, she acknowledged the mistake made by the Court earlier in the decision of Suresh Kumar Koushal & Anr v Naz Foundation.[iii]An apology is rare in the history of judicial decisions.

Conclusion

The decision was controversial in nature. Whilst the LGBTQ+ community was ecstatic by the ruling, extremists were disgruntled because they considered it went against their beliefs. As a result, this decision was prepared while taking into account, the existing belief system of such people, as well as how they would react to this decision. The use of literature in this case made an ethical point and was appealing. This decision had far-reaching consequences for society as a whole, which is why the style in which it was written is so significant.

There was nothing better than literature to portray and communicate this community's sufferings and emotions. Law and Literature both have become effective tools for social reform. They thrive on the artful use of language[iv], especially in legal texts have the power to influence, shape the end result, produce consequences, impact and prompt the reader or interpreter to action, and induce a change of belief. Thus, the way it is written is very crucial.

[i] Navtej Singh Johar v Union of India, (2018) W. P. (Crl.) No. 76 of 2016. [ii] Liebhaber in allen Gestalten, Oxford Lieder (June 2, 2021, 4:23 PM), https://www.oxfordlieder.co.uk/song/2620. [iii] Suresh Kumar Koushal & Anr v Naz Foundation, Civil Appeal No. 10972 OF 2013 (India). [iv] Wendy Nicole Duong, Law is law and art is art and shall the two ever meet? – Law and literature: The comparative creative process, 15 Southern California Interdisciplinary Law Journal 1, 2.

This article has been written by Avni Singhania. Avni Singhania is a fourth-student year student at O.P.Jindal Law School.