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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