Sec 377: judges delve into world history, philosophy

LGBTQ community people celebrate the Supreme Court verdict which decriminalises consensual gay sex, in Bengaluru, Thursday, Sept 6, 2018. (PTI Photo)

From German statesman Johann Wolfgang von Goethe to William Shakespeare, the five learned judges of the Supreme Court delved deep into world history and philosophy to pick up appropriate arguments in their historic verdict that decriminalised consensual homosexuality in India.

“I am what I am, so take me as I am,” - the quote from Goethe, an 18th-century German scholar sets the tone of the 493-page judgement in its opening paragraph.

The second line comes from the German philosopher Arthur Schopenhauer - “No one can escape from their individuality”. Schopenhauer was among the first thinkers in western philosophy to share and affirm significant tenets of eastern philosophy like asceticism, having arrived at similar conclusions, as the result of his own philosophical thinking.

As they began reading out their judgements, the judges quoted 19th-century British thinker 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.”

Next comes William Shakespeare.

“Shakespeare through one of his characters in a play says - 'What's in a name? That which we call a rose by any other name would smell as sweet.' 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,” says the verdict, in its interpretation of the famous quote.

While dealing with the doctrine of progressive realisation of rights in the Constitution, the judges quoted the Anglo-Irish philosopher, statesman and orator Edmund Burke - “A Constitution is ever-growing and it is perpetually continuous as it embodies the spirit of a nation. It is enriched at the present by the past experiences and influences and makes the future richer than the present.”

Subsequently, they quoted 20th century British lawyer and public servant Lord Roskill who suggested that it was not only the interpretation of the Constitution which needed to be pragmatic, due to the dynamic nature of a Constitution, but also the legal policy of a particular epoch must be in consonance with the current and the present needs of the society, which were sensible in the prevalent times and at the same time easy to apply.

The five judges also quoted British Prime Minister Theresa May who in her speech at the Commonwealth Joint Forum on April 17, 2018, urged the Commonwealth Nations to overhaul outdated anti-gay laws, and expressed regret regarding Britain’s role in introducing such laws.

“Across the world, discriminatory laws made many years ago continue to affect the lives of many people, criminalising same-sex relations and failing to protect women and girls. I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced and the legacy of discrimination, violence and even death that persists today,” she had stated.

 

 

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