Thursday, December 12, 2013

Our Supreme Court Failed to do, what US Supreme Court did in the year 1950!

Yesterday’s verdict by our Apex Court on Section 377 IPC, took me back to Black’s Fight against racial discrimination in US and their legal fight in US Supreme Court, the case was, McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950), was a United States Supreme Court case that reversed a lower court decision upholding the efforts of the state-supported University of Oklahoma to adhere to the state law requiring African-Americans to be provided graduate or professional education on a segregated basis. The court found that the university's inaction in providing separate facilities, in order to meet Oklahoma state law, allowing McLaurin to attend the institution was a violation of his Constitutional rights.
George McLaurin, who already had a Masters Degree in Education, was first denied admission to the University of Oklahoma to pursue a Doctor of Education degree. McLaurin successfully sued in the US District Court for the Western District of Oklahoma to gain admission to the institution (87 F. Supp. 526; 1948 U.S. Dist.) basing his argument on the Fourteenth Amendment. At the time, Oklahoma law prohibited schools from instructing blacks and whites together. The court found that the university's inaction in providing separate facilities, in order to meet Oklahoma state law, allowing McLaurin to attend the institution was a violation of his Constitutional rights.
The University admitted McLaurin but provided him separate facilities, including a special table in the cafeteria, a designated desk in the library, and a desk just outside the classroom doorway.
McLaurin returned to the US District court and petitioned to require the University of Oklahoma to remove the separate facilities allowing him to interact with the other students fully (87 F. Supp. 528; 1949 U.S. Dist.) The court denied McLaurin's petition.
McLaurin then appealed to the US Supreme Court. On June 5, 1950, the United States Supreme Court ruled that a public institution of higher learning could not provide different treatment to a student solely because of his/her race as doing so deprived the student of his/her Fourteenth Amendment rights of Equal Protection.
Accordingly, the high court reversed the decision of the US District Court, requiring the University of Oklahoma to remove the restrictions under which McLaurin was attending the institution. This case together with Sweatt v. Painter, which was decided the same day, marked the end of the separate but equal doctrine of Plessy v. Ferguson in graduate and professional education.

On 02.07.2009 Delhi High Court put an end from his side to the law which was there on the book even after the 59 years of Constitution by saying, “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.  The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to  amend  the  law  to  effectuate  the recommendation of the Law Commission of  India  in  its  172nd  Report which we believe removes a  great  deal  of  confusion.  Secondly,  we clarify that our  judgment  will  not  result  in  the  re-opening  of criminal cases involving Section 377 IPC that  have  already  attained finality.” This was a relief to large number of people who are identified themselves either as Gay, lesbian Bisexual Transgenders,  Hijara and Kothis (L.G.B.T) persons. They are no more criminals; their consensual sexual act is no more criminal act, they are no more criminals in the eye of law enacted as early as in the year 1860.
The joy did not lost longer the magical number 11.12.13 was turned disaster to number of those people and not only those people but the people who believe in a freedom of choice. The Apex Court said
54.   In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
55.   The appeals are accordingly allowed, the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed.
56.   While parting with the case, we would like to make it clear that  this Court has merely pronounced on the correctness of  the  view  taken  by  the Delhi High Court on the constitutionality of Section 377 IPC and found  that the  said  section  does  not  suffer  from  any  constitutional  infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
Up course Supreme Court has its reasoning and logic in coming to this conclusion but the judicial system is so blind? Judiciary does not see what is happening in and around?, don’t they get the logic?
But the question remain what US Supreme Court did in the year 1950 Indian Supreme Court fail to do in the year 2013.
It’s completely justifiable to the fact that the Legislator should legislate the law, the fact that they have not done for 63 would have been good reason for Supreme Court to substantiate the order of the Delhi High Court, then setting aside and saying that it’s a job of the legislature not the judiciary.
The difference is that the US Supreme Court could have said the same thing in the year 1950 but they could able to see the problem; they could able to see that the state has failed to do so. What prevented our Supreme Court to make a history? Its not that this is the Supreme Court has not struck down the law before. It’s not that the Supreme Court made the law before. But this time they have really failed. They have failed to understand the feelings of the people who are oppressed, who are discriminated, differenced. 

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