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print versionWhen I heard of the ruling of the Delhi high court on the Indian Penal Code’s Section 377, and the Supreme Court declining to stay the high court judgment, my mind went to the trial of Oscar Wilde for practicing homosexuality and his subsequent imprisonment and release from the Reading jail where he wrote The Ballad of Reading Jail. The other one he wrote, De Profundis, was published posthumously. Both are moving testaments to his genius.
Oscar Wilde initiated prosecution for defamation but instead he was arrested in 1895 on charges of homosexuality under Britain’s Criminal Law Amendment Act, 1885.
By 1891, Oscar Wilde was at the height of his fame as a writer and his plays, particularly The Importance of Being Earnest, were being played to crowded houses in London. This was also the year when he first met Lord Alfred Douglas (known as Bosie), 22-year-old son of the Marquess of Queensbury. This was the beginning of Wilde’s undoing. Incidentally, the Marquess of Queensberry rules, the code that most directly influenced modern boxing, were sponsored by the Marquess and named after him.
Even today, though more than a century has lapsed since Oscar Wilde’s trial, we hear people disapproving of the Delhi high court judgment. So you can imagine the reaction to what was considered a despicable crime in those Victorian days when Wilde faced the trial. It’s interesting to note the fact that homosexuality being designated a crime and forced underground only affirms its existence, then and now.
The relationship between Wilde and Lord Alfred was distasteful to the Marquess, who felt that his son had been seduced. Intending a showdown with Wilde, he left his visiting card at Wilde’s Club on which he had written: "For Oscar Wilde posing as a Somdomite". Wilde, at the height of his fame and enjoying considerable affluence and influence, walked into the Marlborough police court and charged that the Marquess had defamed him. Though the Marquess was arrested and later released, Wilde was mercilessly cross-examined by Edward Carson QC, renowned for his cross-examination. Wilde’s mastery over the English language, however, proved to be his undoing. The answers given by Wilde to Carson’s questions might make for fine reading but every time such answers were given, Wilde got trapped further into admitting the crime he was accused of. Carson succeeded in his defence of the Marquess and turned the case into a prosecution of Wilde.
Against the advice of his friends to go abroad, Wilde stayed back and was arrested at the Cadogan Hotel, Knightsbridge, for "gross indecency" under Section 11 of the Criminal Law Amendment Act 1885. "Gross indecency" implied homosexual acts. Prior to that Act, the law only punished acts against public decency or those tending to the corruption of youth. The Criminal Law Amendment Act, 1885, intended "to make further provision for the protection of women and girls, the suppression of brothels, and other purposes", had also criminalised homosexuality.
During the trial, prosecutor Charles Gill, hoping to besmirch Wilde’s reputation, picked out a line from Lord Alfred’s poem Two Loves and asked, "What is ‘love that does not speak its name’?" Wilde’s answer to this is worth recalling on this occasion as it provides a substantive answer to the issues raised in this case, including pederasty: "The ‘love that does not speak its name’ in this century is such great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, such as you find in the sonnets of Michaelangelo and William Shakespeare. It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art like those of William Shakespeare and Michaelangelo, and these two letters of mine, such as they are. It is in this century misunderstood that it may be described as ‘love that dare not speak its name’, and on 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 elder and a younger man, when the elder man has intellect, and the younger man has all the joy, hope and glamour of life before him. That it should be so the world does not understand. The world mocks at it and sometimes puts one in the pillory for it". This earned Wilde spontaneous applause from visitors in the court.
The judgment of the Delhi high court is a well considered one. It has held that the offence dealt with by Section 377 is violative of equality as enshrined in the Indian Constitution, particularly Article 15. And yet, the transition to acceptance of this "sexual orientation" may not find ready acceptance from people in 40-plus age group. No judgment has ever been able to bring wholesale change in cultural or social outlook. The attitude towards and violence against women is, perhaps, a standing illustration of this fact. The attitude towards dalits is yet another example. Though many persons passing through adolescence to adulthood would have gone through homosexual or lesbian phase, it is still considered "morally obnoxious" by the majority.
In England, in the fifties, when homosexuals were becoming more and more ubiquitous, the Wolfenden Committee was appointed on look into the issue of homosexuality and the law. In this 14-member committee, only one member was a dissenter. The report, published in 1957, held that homosexual relationships between consulting adults in private is not an offence, and that it cannot be considered a disease and that the function of law is to preserve public order and decency. The law cannot impose a particular pattern of life on people.
Lord Devlin’s views on the report, as presented in "The Enforcement of morals", raises some interesting questions and Ronald Dworkin’s response to him are equally interesting and help understand the issue better. Lord Devlin did not differ with the committee but found demarcation between crime and morality problematic and compared the problem "to a coastline of irregularities and indentations". He doubted that the report was trying to find "one single principle to explain the division between crime and sin".
This debate will go on until homosexuality finds acceptance as a natural practice by normal people who have been with us a long time.
K.G. Kannabiran is national president of People’s Union for Civil Liberties
