1. Affirmative action is not absolute in nature.

Reservation policy cannot alter the basic

structure of the Indian Constitution. This is why it is subject to judicial review even if
the legislature has put the reservation provision into the Ninth Schedule capsule. 1
2. In M R Balaji v. State of Mysore2, the Supreme Court said that reservations under Arts.
15 (4) and 16(4) must be within reasonable limits and the interests of weaker sections
of society have to be adjusted with the interests of the community as a whole. The court
held that a special provision should be less than 50%.
3. For determining social and educational backwardness, in MR Balaji case, the court held
that ‘caste’ cannot be the sole criterion to determine social backwardness of groups or
class of citizens.
4. The Supreme Court in Indira Sawhney v. Union of India3 held that creamy layer
amongst backward class of citizens must be excluded by fixation of proper income,
property or status criteria. The court declared separate reservations for economically
poor among forward castes as invalid. The court also held that there should be no
reservation in case of promotions while overruled (on the point of reservation in
promotion) .
5. In order to invalidate the Indira Sawhney judgment, so far as reservation in promotion
and carry forward rule were concerned, Articles 16(4A) & 16 (4B) were inserted into
the Constitution by way of 77th Amendment.
6. Again, by 85th Constitutional amendment, the consequential Seniority was inserted in
Art 16 (4)(A) to make the Ajit Januja (II) judgement invalid.
7. The above-said constitutional amendments were challenged in the apex court.
However, the Supreme Court in M. Nagraj & Ors v. Union of India4 upheld the
constitutional validity of the new provisions and the Supreme Court reiterated that the
ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency are
all constitutional requirements without which the structure of equality of opportunity in
Article 16 would collapse.
8. Ashoka Kumar Thakur v. Union of India5 and the Constitution Bench held in the
aforesaid case that clause (5) of Article 15 is valid and does not violate the “basic

1
I.R. Coelho (Dead) by LRS. v. State of T.N., 2007 (2) SCC 1
2
AIR 1963 SC 649
3
AIR 1993 SC 477
4
AIR 2007 SC 71
5
(2008) 6 SCC 1
 structure” of the Constitution so far as it relates to the State-maintained institutions and
aided educational institutions. The Court also held that “Creamy layer” principle cannot
be applied to STs and SCs, as SCs and STs are separate classes by themselves. In the
aforesaid case, however, the Constitution Bench left open the question whether clause
(5) of Article 15 was constitutionally valid or not so far as “private unaided” educational
institutions are concerned, as such “private unaided” educational institutions were not
before the Court.6 This issue was again challenged in
9. Pramati Educational & Cultural Trust. v. Union of India7. In this case, a five- judge
Constitutional bench upheld the Constitutional validity of the 93rd amendment to the
Constitution of India and RTE Act to the extent that it makes a provision for unaided
educational institutions to provide education to economically and socially weaker
sections, through 25 % reservation in their educational institutions. The Court while
upholding the constitutional validity of RTE Act, excluded the minority Institutions
from the purview of it.
10. All right-thinking people are of the view that the basis for reservation should be
economic status rather than the caste of a person. However, the bitter truth is that the
Indian democratic system has become a hostage to caste politics and there is not even
the remotest possibility of rescuing it.8

6
Pramati Educational & Cultural Trust ® & Ors. v. Union of India Writ Petition (C) No. 416 OF 2012, Supreme
Court of India, decided on May 06, 2014. Available at http://supremecourtofindia.nic.in/outtoday/41505.pdf
7
Ibid.
8
Ibid.
 Immediate scrutiny Test

Overview
Strict scrutiny is a form of judicial review that courts use to determine the constitutionality of
certain laws. Strict scrutiny is often used by courts when a plaintiff sues the government
for discrimination. To pass strict scrutiny, the legislature must have passed the law to further
a "compelling governmental interest," and must have narrowly tailored the law to achieve
that interest.
Strict scrutiny is the highest standard of review which a court will use to evaluate the
constitutionality of governmental discrimination. The other two standards are intermediate
scrutiny and rational basis review.

Application

Equal Protection
Strict scrutiny will often be invoked in an equal protection claim. For a court to apply strict
scrutiny, the legislature must either have passed a law that infringes upon a fundamental
right or involves a suspect classification. Suspect classifications include race, national origin,
religion, and alienage.
Reed v. Reed
A mandatory provision of the Idaho probate code that gives preference to
men over women when persons of the same entitlement class apply for
appointment as administrator of a decedent' estate is based solely on a
discrimination prohibited by and therefore violative of the Equal
Protection Clause of the Fourteenth Amendment.

Overview
Intermediate scrutiny is a test courts will use to determine a statute's constitutionality.
Intermediate scrutiny is only invoked when a state or the federal government passes a statute
which negatively affects certain protected classes (this is described in further detail in the
next section). To pass intermediate scrutiny, the challenged law must:

1. further an important government interest

2. and must do so by means that are substantially related to that interest.

As the name implies, intermediate scrutiny is less rigorous than strict scrutiny, but more
rigorous than the rational basis test. Intermediate scrutiny is used in equal
protection challenges to gender classifications, as well as in some First Amendment cases.

Origin
The Supreme Court created the Intermediate Scrutiny Test in Craig v. Boren, 429 U.S. 190
(1976). In Craig, the Court created the intermediate scrutiny test and applied it to a statute
which discriminated on the basis of gender. Since then, courts have found that gender is a
protected class, and any statute which discriminates on the basis of gender must undergo the
intermediate scrutiny test.

Protected Classes
In addition to statutes which discriminate based on gender, statutes which discriminate based
on illegitimacy (i.e. children born out of wedlock) are also subject to intermediate scrutiny,
according to Matthews v. Lucas, 427 U.S. 495 (1976) and Trimble v. Gordon, 430 U.S. 762
(1976). These cases may also refer to the level of scrutiny as "elevated scrutiny" or "realm of
less than strictest scrutiny).
 Preventive detention
‘Ashok Kumar vs Delhi administration’
1. The case which said “preventive detention is devised to afford
protection to society. The object is not to punish a man for having
done something but to intercept before he does it and to prevent
him from doing”
2. preventive detention is a serious invasion of personal liberty and
the normal methods open to a person charged with commission of
any offence to disprove the charge or to prove his innocence at the
trial are not available to the person preventively
3. if there is unreasonable delay between the date of the order of
detention and actual arrest of the detenue and in the same manner
from the date of the proposal and passing of the order of detention,
such delay unless satisfactorily explained throws a considerable
doubt on the genuineness of detention and consequently render
the detention order bad and invalid because the ‘live and
proximate link’ between the grounds of detention and the purpose
of detention is snapped in arresting the detenue”.
4. The Supreme Court has held in an order that preventive
detention cannot be used to counter ordinary law and order
situations. It is an “exceptional power” of the State which affects
the personal liberty of the individual.
Rekha Vs. State of Tamil Nadu
riminal cases are already going on against the detenu under various
provisions of the Indian Penal Code as well as under the Drugs and
Cosmetics Act, 1940 and if he is found guilty, he will be convicted and
given appropriate sentence. In our opinion, the ordinary law of the land
was sufficient to deal with this situation, and hence, recourse to
the preventive detention law was illegal."
Yumman Ongbi Lembi Leima v. State of Manipur
An individual incident of an offence under the Penal Code, however
heinous, is insufficient to make out a case for issuance of an order
of preventive detention."
difference between "law and order" and "public order". The offences
which are committed against a particular individual fall within the ambit
of "law and order". It is only when the public at large is adversely
affected by the criminal activities of a person, the conduct of a person is
said to disturb "the public order". Moreover, individual cases can be
dealt with by the criminal justice system. Therefore, there is no need for
the detaining authority to invoke the
draconian preventive detention laws against an individual
 CCTV Surveillance
Can CCTV Surveillance Invade the Right to Privacy
In the midst of the beneficial outcomes, a fundamental question has
arisen: when does CCTV surveillance step over the boundary from an
effective security instrument to an unlawful invasion of an individual’s
reasonable expectation of privacy?
A reasonable expectation of privacy refers to areas or components of
one’s very own life where a sensible person would expect some degree of
privacy.
These are a few examples of places where a person has a reasonable
expectation of privacy:
1. Rooms of hotel
2. Residence location
3. Public areas such as public restrooms
4. Telephone booths
5. Changing room
6. Notable zones of prison
In U.S. v. Vargas the Court’s analysis centered around whether Mr.
Vargas had a reasonable expectation of privacy not to have his front yard
constantly observed and recorded by a camera on a telephone pole over a
hundred yards away for six weeks. The court ruled that a video
surveillance camera focusing on singular’s front yard in a rural location
violated his reasonable expectation of privacy.
The general public can now purchase tools that were previously solely
available to high-level law authorities and government agents. CCTV has
provided individuals and companies with formerly impossible levels of
security, but the ease with which security cameras can be installed has
also led to considerable abuses. According to cyber law experts, multiple
cases of installed CCTV cameras breaching privacy are arising.
Are Hidden Cameras Unlawful?
Consent law and the use of hidden cameras are now hotly debated topics.
As mentioned earlier, laws vary by state. Evaluation of the legality of
hidden cameras is based on where one resides and how it is being used.
Hidden cameras are often not lawful to put in bathrooms or bedrooms
where someone is staying, or any other area where people would expect
to have a higher degree of privacy.However, having hidden cameras in
public spaces such as restaurants, outdoor parks, shopping malls, city
streets is normally lawful, but it shouldn’t be used to infringe on the right
to privacy.

Some states in the USA, including California, Georgia, Arkansas,

Delaware, Kansas, Utah, Hawaii, South Dakota, etc require employees’
written agreement to have a hidden camera watching them. It is vital to
remember that conducting CCTV surveillance through hidden cameras
in order to conduct a crime or using the contents to perform blackmail
against someone is prohibited.

India

India, as a developing country, has made significant changes to its

information technology rules, yet there are still plenty more to be made.
The IT Act of 2000 is the parent legislation governing electronic
surveillance. If a camera captures or transmits photos of a person’s
private parts, male or female, without consent, the criminal can be
charged under Section 66E. it is a bailable offence, with only three years
of imprisonment and a fine of Rs 2 lakh.

The Information Technology Rules, 2021, and the Right to Privacy and
Data Protection Bill, 2019 also deal with surveillance. However, there are
no detailed guidelines and legislation for CCTV surveillance in India.

The Supreme Court’s nine-judge bench held, in response to the

reference, that according to Article 21 of the Constitution and as one
of the freedoms guaranteed by Part III of the Constitution, the right
to privacy is safeguarded as an integral component of the right to life
and to personal liberty.
 Free Speech and Obscenity

Hicklin Test -In the United Kingdom, way back in 1868, the Court laid down the Hicklin test
in Regina v. Hicklin (1868 L.R. 2 Q.B. 360), and held:-“The test of obscenity is whether the
tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are
open to such immoral influences and into whose hands a publication of this sort may fall.”
(Overruled in Roth decision-see below)

Obscenity in the United States

 After the Civil War, in a movement led by Anthony Comstock, the prohibition on
reproductive control was extended to contraception. In 1873, at the height of the
Victorian era, Congress enacted the federal Comstock Act, which made it a crime,
among other things, for any person to send through the mail “any drug or medicine, or
any article whatever, for the prevention of conception” or any advertisement for such
articles or any information about “when, where, how, or of whom, or by what means,”
any such products “can be purchased or obtained.”
 The efforts of Margaret Sanger to publicize accurate information on sex, health and
venereal disease were hardly respected by the authorities.
 In 1912, an issue of The New York Call, containing Sanger's article ''What Every Girl
Should Know,'' was barred from the mails, and in 1914 seven of the first eight issues of
her newspaper The Woman Rebel were stopped by the post office for violating the
Comstock Act.
 (1917) The People of the State of New York v. Margaret H. Sanger-In 1917,
the New York Court of Appeals upheld a ban on the motion picture ''Birth Control,''
which Sanger produced, on the grounds that it could be censored ''in the interest of
morality, decency and public safety and welfare.''
 Griswold v. Connecticut, 381 U.S. 479; 85 S. Ct. 1678; 14 L. Ed. 2d 510 (1965)
Facts—This case involved the constitutionality of Connecticut’s birth control law. The
statute provided that “any person who uses any drug, medical article or instrument for
the purpose of preventing conception” was to be subject to fine or imprisonment or
both. The statute further specified that a person who assisted another in committing any
offense could be prosecuted and punished as if he were the principal offender. Estelle
Griswold, executive director of the Planned Parenthood League of Connecticut, was
convicted of being an accessory.
 Question—Is the Connecticut statute proscribing birth control valid under the
Constitution?
Decision—No.
Reasons—J. Douglas (7–2). First, the appellants were held to have standing to raise the
constitutional issue because they were accessories to violation of the criminal statute
inasmuch as they were advising married persons as to the means of preventing
conception. The decision established a new constitutional “right of privacy” citing
penumbras, or shadows, of provisions in the First, Third, Fourth, Fifth, Ninth, and
Fourteenth Amendments. The Court noted that “specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give them life
and substance. . . the right of privacy which presses for recognition here is a legitimate
one.
The present case, then, concerns a relationship lying within the zone of privacy created
by several constitutional guarantees. . . . We deal with a right of privacy older than the
Bill of Rights.” In the course of the opinion the Court referred favorably to the Ninth
Amendment’s provision that “The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.”
J. Goldberg’s concurring opinion emphasized the Ninth Amendment.
J. Black and J. Stewart authored dissents distinguishing between the wisdom (or
unwisdom) of a law and its constitutionality. Neither could find specific constitutional
authority for the Court’s discovery of a right to privacy within the Constitution.
Note—The right to privacy that this decision recognized became the cornerstone of the
abortion decision in Roe v. Wade, 410 U.S. 113 (1973).
 Eisenstadt v. Baird, 405 U.S. 438 (1972), is a United States Supreme Court case that
established the right of unmarried people to possess contraception on the same basis as
married couples. The Court struck down a Massachusetts law prohibiting the
distribution of contraceptives to unmarried people for the purpose of preventing
pregnancy, ruling that it violated the Equal Protection Clause of the Constitution.
 Roe v. Wade, 410 U.S. 113; 93 S. Ct. 705; 35 L. Ed. 2d 147 (1973)
Facts—Texas statutes prohibited abortions except by medical advice for the purpose
of saving the life of the mother. A woman proceeding under the pseudonym of Jane
Roe instituted a federal class action against the district attorney of Dallas County
challenging the validity of the statutes. Because the pregnancy did not threaten her life,
she could not obtain a legal abortion in Texas.
Questions—(a) Does the term “person” as used in the Fourteenth Amendment include
the unborn? (b) Does the right of privacy include a woman’s decision on an abortion?
Decisions—(a) No; (b) Yes, at least through the second trimester of pregnancy.
Reasons—J. Blackmun (7–2). (a) The Constitution does not define “person” as such.
However, the use of the word in the various instances where it is used in the
Constitution is such that the word has application only postnatally. The unborn have
never been recognized in the law as persons in the whole sense. “We need not resolve
the difficult question of when life begins. When those trained in the respective
disciplines of medicine, philosophy, and theology are unable to arrive at any consensus,
the judiciary, at this point in the development of man’s knowledge, is not in a position
to speculate as to the answer.”
Abortion laws largely developed in the nineteenth century. They have been explained
as attempts: to discourage illicit sex (Texas has not advanced this argument in this case);
to protect the health of women at a time when the procedure often posed health risks
that were greater than carrying a pregnancy to term; and to protect prenatal life.
(b) The Constitution does not explicitly recognize any right of privacy. However, for
years the Court has recognized that a right of personal privacy does exist under the
Constitution. This has been primarily based upon the Fourteenth Amendment’s concept
of personal liberty and the Ninth Amendment’s reservation of rights to the people. This
right is not unqualified and is subject to state regulation when important interests
intervene. The right of privacy is broad enough to cover the decision as to an abortion.
The right is not absolute and is subject to state interests as to protection of health,
medical standards, and prenatal life.
Pregnancy can be divided into three-month periods—trimesters. During the first period
there is no agreement as to the fetus being a person and risks to women from abortion
are not greater than the risks of childbirth, so the discretion rests with the woman and
her physician. During the second trimester, the health risks to women from abortion
increase sufficiently to justify state regulations of the procedure to protect such health.
During the final trimester, when the fetus is viable and can sustain life outside the
womb, the state may even proscribe abortions, except when necessary to preserve the
life or health of the mother.
 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833; 112 S.
Ct. 2791; 120 L. Ed. 2d 674 (1992)
Facts—Pennsylvania adopted restrictions on abortions. These required informed
consent and a twenty-four-hour waiting period, either the consent of at least one parent
or the exercise of a judicial bypass mechanism in cases where minors sought abortions,
a requirement that a married woman sign a statement indicating that she had informed
her husband of her decision, compliance with all of the above requirements except in
cases of “medical emergencies” threatening a woman’s life or health, and record-
keeping and reporting provisions. The U.S. District Court struck down all these
requirements whereas the U.S. Third Circuit Court of Appeals upheld all but the spousal
notification requirement. The Bush administration asked the Supreme Court to overrule
Roe v. Wade in this case.
Questions—(a) Are the regulations regarding abortions adopted by Pennsylvania
constitutional? (b) Should Roe v. Wade be overturned?
Decisions—(a) Yes, all are constitutional except for the spousal notification decision;
(b) No, the central holding of Roe v. Wade should be reaffirmed.
Reasons—J. O’Connor, J. Kennedy, J. Souter (5–4). These three justices, joined in part
by J. Blackmun and J. Stevens, affirmed that “the essential holding of Roe v. Wade
should be retained and once again reaffirmed.”
This holding consisted of the recognition of the woman’s right to have an abortion
without “undue interference from the State” prior to viability, the state’s right to restrict
abortions after viability, and the recognition of a state’s interest in pregnancy during
the entire process. The three justices writing for the Court traced the right of abortion
to the “liberty” interest of the Fourteenth Amendment, going back through a long series
of privacy precedents. The articulation of this liberty requires the judicial exercise of
“reasoned judgment.” The three justices expressed great concern for the doctrine of
stare decisis (adherence to precedents). The decision in Roe had not proved to be
“unworkable,” but after two decades, it had created a strong “reliance interest” among
women who have built careers around their power to control pregnancies. The Court
contrasted the decision in Roe v. Wade to those in Lochner v. New York (1905),
recognizing economic due process, and Plessy v. Ferguson (1896), providing for racial
segregation. Unlike those cases, they did not believe that Roe was based on disproven
theories. The Court’s legitimacy depends on appearing principled, and caving in to
popular pressure against Roe would undermine the Court’s power. Unlike the central
 holding, the trimester formula outlined in Roe could be discarded. The three justices
instead outlined an “undue burden” test (introduced in a previous case by O’Connor)
that did not recognize the right to an abortion as a fundamental absolute right but one
in which the state also had an interest. The majority believed the only provision of the
Pennsylvania abortion law that created an undue burden was that of spousal
notification, citing numerous studies showing that most wives already notify their
husbands and arguing that, for others, such notification might lead to either physical or
psychological spousal abuse.
J. Stevens agreed with the Court’s emphasis on stare decisis but feared that the state’s
interest in abortion was not truly secular in nature. He believed that requiring women
to be told certain information or requiring that they wait 24 hours for an abortion did
impose an undue burden on them. J. Blackmun (the author of Roe v. Wade), also in
partial concurrence and partial dissent, praised the courage of the three authors of the
Court’s opinion but would subject all abortion restrictions to strict scrutiny and thought
that the regulations at issue were all attempts by the state to conscript “women’s bodies
into its service, forcing women to continue their pregnancies, suffer the pains of
childbirth, and in most instances, provide years of maternal care.” He defended the
trimester formula and faulted the chief justice’s dissent for its “stunted conception of
individual liberty.”
C.J. Rehnquist accused the majority of retaining the “outer shell” of Roe but of beating
“a wholesale retreat from the substance of that case.” He would overrule Roe, leaving
the issue to individual states. He argued that this case did not present a real “reliance
interest.” He did not think that the Court should rule with a view toward public opinion
and faulted the “undue burden” test as being even less precise than the previous “strict
scrutiny” formula.
Rehnquist favored upholding all parts of the Pennsylvania law. J. Scalia’s dissent
attempted to answer one-by-one the arguments of the Court for adhering to stare decisis
in this case and viewed the plurality opinion as an indication that “The Imperial
Judiciary lives.” Like Rehnquist, Scalia believed public opinion was irrelevant to
judicial decision-making but believed that the Court’s original decision in Roe v. Wade
to declare abortion a guaranteed national liberty, rather than leaving the matter at the
state level, had largely led to the unrest that the Court was attempting to ignore.
 Roth v. United States (Alberts v. California), 354 U.S. 476; 77 S. Ct. 1304; 1 L. Ed.
2d 1498 (1957)
 Facts—Samuel Roth conducted a business in New York in the publication and sale of
books, photographs, and magazines. He was indicted and convicted of mailing obscene
circulars and advertising and an obscene book in violation of the federal obscenity
statute. Combined with this case was Alberts v. California, in which David Alberts had
been convicted of publishing obscene matter in violation of the California penal code.
Question—Do these statutes regulating obscenity violate the provisions of the First
Amendment?
Decision—No.
Reasons—J. Brennan (6–3 in Roth; 7–2 in Alberts). The guarantees of freedom of
expression give no absolute protection for every utterance. The protection was
fashioned to assure unfettered interchange of ideas for bringing about political and
social changes by the people. All ideas having the slightest redeeming social importance
have the full protection of the guarantees unless excludable because they encroach upon
the limited area of more important interests. But obscenity is not within the area of
constitutionally protected speech or press. The test of obscenity is “whether to the
average person, applying contemporary community standards, the dominant theme of
the material taken as a whole appeals to prurient interest.” The Court held that these
statutes, applied according to the proper standard for judging obscenity, did not offend
constitutional safeguards against convictions based upon protected material. Both trial
courts in these cases had sufficiently followed the proper standard.
J. Douglas’s dissent stated that the law violated the First and Fourteenth Amendments
by making “the legality of a publication turn on the purity of thought which a book or
tract instills in the mind of the reader.”

 Ginzburg v. United States, 383 U.S. 463; 86 S. Ct. 942; 16 L. Ed. 2d 31 (1966)
Facts—Ralph Ginzburg was convicted of violating the federal obscenity statute by
producing and selling obscene publications. The government charged that Ginzburg’s
advertising openly appealed to the erotic interest of potential customers. This case
involved another application of what has come to be known as “the Roth test.” This
attempt to define obscenity was first set forth in Roth v. United States, 354 U.S. 476
(1957) and has been elaborated in subsequent cases. Under this test three elements must
coalesce to constitute obscenity: (1) the dominant theme of the material in question
must appeal to a prurient interest in sex, (2) it must affront contemporary community
standards, and (3) the material must be utterly without redeeming social value.
 Question—Have the standards of “the Roth test” been correctly applied in this case?
Decision—Yes.
Reasons—J. Brennan (5–4). Evidence showed that pandering—the business of
purveying textual or graphic matter openly advertised to appeal to the erotic interests
of persons—was involved. “The fact that each of these publications was created or
exploited entirely on the basis of its appeal to prurient interests strengthens the
conclusion that the transactions here were sales of illicit merchandise, not sales of
constitutionally protected matter.” The determination of the opinion is simply that
questionable publications are obscene in a context—here the commercial exploitation
of erotica solely for the sake of prurient appeal—which “brands them as obscene as the
term is defined in Roth—a use inconsistent with any claim to the shelter of the First
Amendment.”
J. Black, J. Douglas, J. Stewart, and J. Harlan all authored dissents questioning
whether the Roth standard gave fair notice and/or questioning the relevancy of the fact
that Ginzburg was engaged in “pandering” while selling his materials.

 Miller v. California, 413 U.S.15; 93 S. Ct. 2607; 37 L. Ed. 2d 419 (1973)

Facts—California applied its criminal statutes to sexually explicit materials sent
through the mails to persons who did not request them.
Question—May a state enforce obscenity statutes against publications that offend local
community standards as to what is prurient?
Decision—Yes.
Reasons—C.J. Burger (5–4). States may regulate works that depict or describe sexual
conduct, but such legislation must be carefully limited. The basic guidelines must be
(a) whether the average person, applying contemporary community standards, would
find the work as a whole appealing to the prurient interest; (b) whether the work
depicts or describes in a patently offensive way sexual conduct specifically defined by
the applicable state law; and (c) whether the work as a whole lacks serious literary,
artistic, political, or scientific value. (CURRENT LAW)
The Court rejects the “utterly without redeeming social value” test. Local standards
rather than a national definition of obscenity may be used.
J. Douglas and J. Brennan authored dissents questioning whether there should be an
obscenity exception to the First Amendment and arguing that the revised standards
 adopted by the Court were still overly broad and risked suppressing protected speech.
Significantly, J. Brennan, the author of the Roth test, was now in the minority.
 Criticism of Miller Test ---continues to the notion of applying “contemporary
community standards.” National Community Standards--- the 9th Circuit in United
States v. Kilbride 584 F.3d 1240 (9th Cir. 2009) wrote that “a national community
standard must be applied in regulating obscene speech on the Internet, including
obscenity disseminated via email.” However, in USA v. Paul F. Little, No. 08-15964
(11th Cir. 2010), the Court in an unpublished opinion, the Eleventh Circuit Court
rejected the idea of a national community standard, instead relying on a local one.
 New York v. Ferber, 458 U.S. 747; 102 S. Ct. 2248; 73 L. Ed. 3d 1113 (1982)
Facts—New York prohibited knowing depiction of sexual performances by children or
distribution thereof. Ferber, a proprietor of a Manhattan bookstore, sold two films to
undercover agents of young boys masturbating. A jury found him guilty on two counts,
and the appellate division of the New York State Supreme Court affirmed, but the New
York Court of Appeals reversed on First Amendment grounds, finding the law to be
both under-inclusive and overbroad.
Question—Can a state prohibit the distribution of materials showing children engaged
in sexual conduct, even if the material is not legally obscene?
Decision—Yes.
Reasons—J. White (writing for five justices in a 9–0 decision). Precedents have
established that the First Amendment does not protect obscenity. Although Miller v.
California (1973) established guidelines for obscenity, a state has greater leeway in
regulating “pornographic depictions of children.”
First, the state has a compelling interest in safeguarding the well-being of children.
Second, the distribution of depictions of child sexual activity is related to child abuse
both by preserving a permanent record of such abuse and by contributing to the
“market” that allows the activity to flourish. Third, the sale and adverting of child
pornography provides an economic motive that funds the illegal activity. Fourth, the
value of such depictions “is exceedingly modest, if not de minimis.” Fifth, the decision
is compatible with earlier rulings that specifically define prohibited conduct. Ferber is
not in a position to challenge the statute for overbreadth, which does not appear
substantial.
 Reno v. American Civil Liberties Union, 521 U.S. 844; 117 S. Ct. 2329; 138 L. Ed.
2d 874 (1997)
Facts—The Communications Decency Act of 1996 (CDA) contained provisions
designed to protect minors from “indecent” and “patently offensive” communications
via the Internet. A three-judge U.S. District Court decided that these provisions
conflicted with the freedom of speech guaranteed by the First Amendment.
Question—Did provisions of the Communications Decency Act of 1996 designed to
protect juveniles from adult materials on the Internet violate the First Amendment?
Decision—Yes.
Reasons—J. Stevens (7–2). Stevens began by reviewing the extraordinary growth of
the Internet. Although the Internet contains a great deal of explicit sexual material,
Stevens argued that “almost all sexually explicit images are preceded by warnings as to
the content,” and “the ‘odds are slim’ that a user would enter a sexually explicit site by
accident.” Technology exists whereby individuals could be denied access to websites
unless they had a credit card or an adult password, but “credit card verification is only
feasible . . . either in connection with a commercial transaction in which the card is
used, or by payment to a verification agency.” The Communications Decency Act
prohibited “the knowing transmission of obscene or indecent messages to any recipient
under 18” or “the knowing sending or displaying of patently offensive messages in a
manner that is available to a person under 18 years of age.”
The terms “patently offensive” and “indecent” in the legislation at issue are “inherently
vague.” Such vagueness and overbreadth pose special problems to free speech. Stevens
observed that “the Internet is not as ‘invasive’ as radio or television and that, quoting
the lower court, “Users seldom encounter content ‘by accident.’” The uncertainty of the
meaning of terms in the statute is troubling both because they constitute “a content-
based regulation of speech” and because the CDA is a criminal statute: “In order to
deny minors access to potentially harmful speech, the CDA effectively suppresses a
large amount of speech that adults have a constitutional right to receive and to address
to one another.” The statute is not narrowly tailored to achieve its objectives.
 National Endowment for the Arts v. Finley, 524 U.S. 569; 118 S. Ct. 2168; 141 L.
Ed. 2d 500 (1998)
Facts—Stung by outcries over federal funding of art that was considered to be obscene
or blasphemous, Congress amended the National Foundation on the Arts and
 Humanities Act of 1990 to require the National Endowment for the Arts (NEA) to
assure that “artistic excellence and artistic merit are the criteria by which [grant]
applications are judged, taking into consideration general standards of decency and
respect for the diverse beliefs and values of the American public.” After a number of
performance artists, including Finley, questioned this provision, the U.S. District Court
and the U.S. Ninth Circuit invalidated this provision as improper viewpoint
discrimination and for being void for vagueness.
Question—Does the provision of the National Foundation on the Arts and Humanities
Act of 1990 calling for the NEA to take account of standards of decency and respect
for diverse viewpoints violate the First Amendment?
Decision—No.
Reasons—J. O’Connor (6 1/2–1 1/2) O’Connor, like the NEA, reads the congressional
regulation at issue as “merely hortatory.” It “imposes no categorical requirement” and
“stands in sharp contrast to congressional efforts to prohibit the funding of certain
classes of speech.” The NEA interpreted the congressional provision as a call for
creating panels that reflected diverse viewpoints.
The requirement for the NEA to fund works that are “artistic” already calls for
subjective judgments, and considerations of “decency” are appropriate where works are
judged in part for their “educational suitability.” There is no evidence that the NEA has
exercised its power to prohibit funding of disfavoured viewpoints. Questions as to
whether laws are void for vagueness have primary weight when addressing matters of
criminal law, “But when the Government is acting as patron rather than as sovereign,
the consequences of imprecision are not constitutionally severe.” Congress has merely
added “some imprecise considerations to an already subjective selection process.”

 Ashcroft v. The Free Speech Coalition, 535 U.S. 234; 122 S. Ct. 1389; 152 L. Ed.
2d 403; 2002 U.S. LEXIS 1789 (2002)
Facts—In the Child Pornography Prevention Act (CCPA) of 1996, Congress expanded
its ban on child pornography to include depictions that appear to involve minors in
sexual conduct, including that in which adult actors are portrayed as children and
“virtual child pornography” using computer images to simulate such conduct. A U.S.
District Court upheld the act, which the U.S. Ninth Circuit Court of Appeals reversed.
Four other circuits had sustained the law in other cases.
 Question—Does the Child Pornography Prevention Act violate the First and
Fourteenth Amendments in banning computer simulations of explicit images that
appear to be of actual children engaged in sexual activities but are not?
Decision—Yes.
Reasons—J. Kennedy (6–3). The provisions of the CCPA outlaw speech that was not
identified as obscene in Miller v. California (1973) or in New York v. Ferber (1982).
Child pornography has been recognized as a category that is not protected by the First
Amendment, and Ferber upheld regulations of pornography involving the use of real
juveniles, in which children could be harmed during the production process. This law
attempts to go further in banning depictions of the very idea of juveniles engaged in
sexual behavior. This subject has been the theme of many great works of literature,
including some portrayals of Shakespeare’s Romeo and Juliet. Although the
government argues that materials produced without using real children could be used
to seduce children, the same could be said for other innocent things, including
“cartoons, video games, and candy.” Moreover, the “mere tendency” that such materials
might have in whetting the appetites of pedophiles fails to distinguish between “words
and deeds, between ideas and conduct.” Although prosecution of real pornography
might be made more difficult by the task of distinguishing it from simulated
pornography, “The Government may not suppress lawful speech as the means to
suppress unlawful speech.” Similarly, the government’s ban on advertising that
conveys the impression that it deals with child pornography is “overbroad and
unconstitutional.”

 Ashcroft v. American Civil Liberties Union, 542 U.S. 656; 124 S. Ct. 2783; 159 L.
Ed. 2d 690 (2004)
Facts—The Child Online Protection Act (COPA) required commercial Internet
postings of sexual material to limit access to minors by requiring use of a credit card,
digital certificate, or other reasonable measures. The U.S. Third Circuit affirmed a
preliminary injunction against the law. The U.S. Supreme Court decided that the
“community standards” language in the statute did not per se make the law invalid, but,
on remand, the Third Circuit still concluded that the law was not narrowly tailored to
serve a compelling governmental interest, was overbroad, and did not use the least-
restrictive means available.
 Question—Is there sufficient evidence to sustain the preliminary injunction against
enforcement of the Child Online Protection Act?
Decision—Yes.
Reasons—J. Kennedy (5–4). COPA is Congress’s second attempt to regulate
pornography on the Internet, the Court having invalidated the Communications
Decency Act of 1996. The Court will uphold injunctions that are not abuses of
discretion. The lower court issued the preliminary injunction because it thought the
government could apply less restrictive means. Filters constitute such a means: “They
impose selective restrictions on speech at the receiving end, not universal restrictions
at the source.” Filters might also be more effective since they apply to the 40 percent
of pornography that is produced abroad. The Commission on Child Online Protection
so concluded.
“[T]he potential harms from reversing the injunction outweigh those of leaving it in
place by mistake since the government has yet to launch any prosecutions under the
law.” Moreover, “there are substantial factual disputes remaining in the case.” Finally,
technology continues to change and has already changed significantly since the law was
first adopted.
 Osborne v. Ohio, 495 U.S. 103 (1990), is a U.S. Supreme Court case in which the
Court held that the First Amendment allows states to outlaw the mere possession, as
distinct from the distribution, of child pornography. In so doing, the Court extended
the holding of New York v. Ferber, which had upheld laws banning the distribution of
child pornography against a similar First Amendment challenge, and distinguished
Stanley v. Georgia, which had struck down a Georgia law forbidding the possession of
pornography by adults in their own homes. The Court also determined that the Ohio
law at issue was not overbroad, relying on a narrowing interpretation of the law the
Ohio Supreme Court had adopted in prior proceedings in the case. However, because it
was unclear whether the State had proved all the elements of the crime, the Court
ordered a new trial.
 United States v. Williams, 553 U.S. 285 (2008), was a decision by the Supreme Court
of the United States that a federal statute prohibiting the "pandering" of child
pornography[2] (offering or requesting to transfer, sell, deliver, or trade the items) did
not violate the First Amendment to the United States Constitution, even if a person
charged under the code did not in fact possess child pornography with which to trade.
 The decision overturned the Eleventh Circuit's ruling that the statute was facially void
for overbreadth and vagueness. The Supreme Court reasoned that there is no First
Amendment protection for offers to engage in illegal transactions, and that banning "the
collateral speech that introduces such material into the child-pornography distribution
network" does not in fact criminalize a "substantial amount of protected speech."
Justice David H. Souter — joined by Ruth Bader Ginsburg — dissented. He criticized
the majority for “undermin[ing] Ferber and Free Speech Coalition.”
Souter reasoned that the PROTECT Act criminalized the very type of expression
protected in Free Speech Coalition — virtual child pornography that did not involve
the actual use of minors or harm to children.
“The tension with existing constitutional law is obvious,” Souter wrote. “Free Speech
Coalition reaffirmed that nonobscene virtual pornographic images are protected,
because they fail to trigger the concern for child safety that disentitles child
pornography to First Amendment protection.” He also warned that the decision “might
have an unsettling significance well beyond the subject of child pornography.”
In Free Speech Coalition, the Court had ruled that that virtual pornography did not
involve the same harms to children as pornography involving real children. This
distinguished it from New York v. Ferber (1982), in which the Court had justified a
child pornography exception to the First Amendment’s broad free speech protections
based on actual harm to children.

 (1959) Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case
upholding the freedom of the press. The decision deemed unconstitutional a city
ordinance that made one in possession of obscene books criminally liable because it did
not require proof that one had knowledge of the book’s content, and thus violated the
freedom of the press guaranteed in the First Amendment. Smith v. California continued
the Supreme Court precedent of ruling that questions of freedom of expression were
protected by the Due Process clause of the Fourteenth Amendment from invasion by
state action. It also established that in order for one to be criminally liable for possession
of obscene material, there must be proof of one’s knowledge of the material.-------In
this case, Eleazer Smith, 72, bookstore owner, had never read Tryon’s book about a
ruthless lesbian businesswoman and did not know (scienter) that it was considered
obscene under local and state law.
 (1959) In Kingsley International Pictures v. Board of Regents, 360 U.S. 684 (1959),
the Supreme Court continued to review constitutional issues of prior restraint raised by
the practice begun in 1911 of states licensing films. The Court held that New York’s
statute controlling the licensing of films regulated ideas no matter how they were
expressed or their consequent effects, thereby contravening the guarantees of the First
Amendment. The decision expanded on the Court’s decision in Burstyn v.
Wilson (1952) extending First Amendment protection to films. New York required all
films to be licensed --As amended in 1954, New York’s Education Law required that
all films be licensed for exhibition by the Motion Picture Division of the New York
Education Department, and it called for denial of license to any film that “expressly or
impliedly portrays acts of sexual immorality . . . as desirable, acceptable or proper
patterns of behavior.” The denial of license for the film Lady Chatterley’s Lover, based
on the novel by D. H. Lawrence, was appealed to the Regents of the State of New York,
who upheld the denial, finding that the film clearly portrayed adultery in a positive
light. Supreme Court found the New York statute was invalid under the First
Amendment-In a 9-0 decision, the U.S. Supreme Court reversed the New York Court
of Appeals, finding the New York statute was invalid under the First Amendment. The
majority opinion, written by Justice Potter Stewart and joined by four other justices,
held that the New York statute in effect regulated ideas irrespective of their mode of
expression or consequent effect, contrary to the guarantees of the First Amendment.
Specifically, the Court held that the denial of license based on a film’s portrayal of
immorality was arbitrary and acted to suppress expression of ideas beyond the
conventional and shared by the majority. In a concurring opinion joined by two other
justices, Justice John Marshall Harlan II agreed with the result, but cautioned that film
licensing was not precluded by the First Amendment and that the New York statutory
standard might be constitutionally permissible, albeit in this case the standard had been
inappropriately applied. By denying the implicit inclusion of sexual themes within the
obscenity exception to First Amendment protections, the Kingsley decision
fundamentally narrowed future obscenity prosecutions to the scrutiny of graphic
depictions of sexuality that appeal to prurient interest, and it presaged the practical
demise of film licensing — after Freedman v. Maryland (1965) — as prior restraint
under constitutional due process guarantees.
 (1965 )The Supreme Court unanimously ruled in Freedman v. Maryland, 380 U.S.
51 (1965), that the prior restraint carried out under Maryland’s motion-picture
censorship statute since 1916 unduly restricted the First Amendment rights of film
distributors and exhibitors. The reverse burden of proof that government censorship
laws placed on film distributors created unacceptable delays that might have a chilling
effect on speech. Film-censorship statutes that came and went between 1907 and 1981
in seven states and dozens of municipalities were based on prior restraint — that is,
they required that movies be examined before they could be shown. Licenses were
denied to movies found to be obscene, sacrilegious, indecent, inhuman, immoral, or
likely to incite criminal activity. Distributors refused licenses had only one recourse: to
bring suit against the censors. In the opinion for the Court, Justice William J.
Brennan Jr. tried to balance the right of free expression against the state’s power
to protect public morality and the Court’s belief that movies were different from
other means of communication. In doing so, he established two procedural
safeguards. First, the burden of proof shifted to the censors who had to either
quickly issue a license or go to court to demonstrate why a film was not protected by
the First Amendment. Second, a censorship statute had to provide for “prompt”
judicial review. Today, the so-called Freedman factors still play a significant role in
First Amendment jurisprudence. Although the Court had not declared prior restraint of
movies unconstitutional, the new restrictions prompted the remaining censoring states,
except one, to cease censorship within two years. Maryland redrafted its statute to
conform to the Freedman guidelines and continued censoring movies until 1981.
 (1974) In Jenkins v. Georgia, 418 U.S. 153 (1974), the Supreme Court overturned the
conviction of a movie theater manager who had been prosecuted for showing a film
deemed obscene by local and state authorities. The Court’s decision affirmed two
fundamental principles of obscenity law: the First Amendment allows states great
latitude in how they define “contemporary community standards,” and material with
nudity and sexual themes alone is not obscenity.
 (1969) In Stanley v. Georgia, 394 U.S. 557 (1969), the Supreme Court held that the
mere private possession of obscene materials could not be criminalized. The Court
based its decision on the principle that the First Amendment protects the right to receive
information and ideas, even when those ideas lack social worth. As Justice Thurgood
Marshall wrote for the Court, “If the First Amendment means anything, it means
 that a State has no business telling a man, sitting alone in his own house, what
books he may read or what films he may watch. Our whole constitutional heritage
rebels at the thought of giving government the power to control men’s minds.”
 (1964) The Supreme Court decision in Jacobellis v. Ohio, 378 U.S. 187 (1964),
overturned on First Amendment grounds the conviction of a movie theater manager
who had been prosecuted for showing a film deemed by Ohio authorities to be obscene.
Jacobellis v. Ohio (1964) narrowed the scope of the Roth decision. Justice Potter
Stewart, in his concurrence to the majority opinion, created the standard whereby all
speech is protected except for "hard-core pornography". As for what, exactly,
constitutes hard-core pornography, Stewart said "I shall not today attempt further to
define the kinds of material I understand to be embraced within that shorthand
description, and perhaps I could never succeed in intelligibly doing so. But I know it
when I see it, and the motion picture involved in this case is not that." This was
modified in Memoirs v. Massachusetts (1966), in which obscenity was defined as
anything patently offensive, appealing to prurient interest, and of no redeeming social
value. Still, however, this left the ultimate decision of what constituted obscenity up
to the whim of the courts, and did not provide an easily applicable standard for review
by the lower courts. This changed in 1973 with Miller v. California. The Miller case
established what came to be known as the Miller test, which clearly articulated that
three criteria must be met for a work to be legitimately subject to state regulations. The
Court recognized the inherent risk in legislating what constitutes obscenity, and
necessarily limited the scope of the criteria. The criteria were: The average person,
applying local community standards, looking at the work in its entirety, must find that
it appeals to the prurient interest. --The work must describe or depict, in an obviously
offensive way, sexual conduct, or excretory functions.--The work as a whole must lack
"serious literary, artistic, political, or scientific values".
 (1966) In Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Supreme Court held
that the book John Cleland’s Memoirs of a Woman of Pleasure was not obscene. Before
reaching its decision, the Court revisited its obscenity test — specifically, the
requirement it had established in Roth v. United States (1957) that an obscene work
must be “utterly without redeeming social value.” In the ruling, Justice William J.
Brennan Jr., writing for a three-member plurality that included Chief Justice Warren E.
Burger and Justice Abe Fortas, explained that reversal was appropriate because “a book
 cannot be proscribed unless it is utterly without redeeming social value” (emphasis in
original). Social value, Brennan explained, must be evaluated “independently” of the
other criteria, and therefore “can neither be weighed against nor cancelled by [the
book’s] prurient appeal or patent offensiveness.” This view of social value was later
expressly rejected in Miller v. California (1973).----- A plurality in Memoirs had
established that any material designated as obscene had to be “utterly without any
redeeming social value,” but in Miller the Court relaxed the standard for prosecutors
by requiring the material to have some “serious value.” The new standard granted
“greater discretion to law enforcement agencies, judges and jurors to decide whether,
under local community standards, material should be condemned as obscene”.
 (1967) (de facto ending American censorship of written material) In Redrup v.
New York, 386 U.S. 767 (1967), the Court ruled that Written materials that were
not sold to minors, or foisted on unwilling audiences were constitutionally
protected. The Court set up three guideposts against which the constitutionality of
state statutes in each of these cases could be measured.
o First, the statute must reflect a specific concern for the protection of juveniles
from exposure to obscenity.
o Second, it must guard against any “assault upon individual privacy” through a
manner of publication so obtrusive as to make it impossible for the unwilling
individual to avoid the obscene message.
o Finally, citing Ginzburg v. United States (1966), the Court said that the statute
must target “pandering,” by which the Court meant a manner of advertisement
permeated “with the leer of the sensualist.”

Obscenity in India

 Ranjit D. Udeshi v. State of Maharashtra AIR 1965 SC 881- conviction of bookseller

of Lady Chatterley’s lover novel u/s 292 IPC----It may, however, be said at once that
treating with sex and nudity in art and literature cannot be regarded as evidence of
obscenity without something more. The test of obscenity must square with the freedom
of speech and expression guaranteed under our Constitution. This invites the court to
reach a decision on a constitutional issue of a most far reaching character and it must
beware that it may not lean too far away from the guaranteed freedom.---- The world,
 is now able to tolerate much more than formerly, having coming indurate by literature
of different sorts. The attitude is not yet settled…
 Chandrakant Kalyandas Kakodar v. State of Maharashtra 1969 (2) SCC 687- The
appellant was the author of a short story entitled Shama published in the 1962 Diwali
Issue of Rambha, a monthly Marathi Magazine, which story is said to be obscene. ---
The standards of contemporary society in India are also fast changing---It is the duty
of the Court to consider the article, story or book by taking an overall view of
the entire work. Found not obscene...
 Samaresh Bose v. Amal Mitra (1985) 4 SCC 289- Novel was read as whole to
determine the obscenity----held not obscene.--- the Court held that in judging the
question of obscenity, the judge in the first place should try to place himself in the
position of the author and from the viewpoint of the author, the judge should try to
understand what is it that the author seeks to convey and whether what the author
conveys has any literary and artistic value. Judge should thereafter place himself in the
position of a reader of every age group in whose hands the book is likely to fall and
should try to appreciate what kind of possible influence the book is likely to have on the
minds of the reader.
 In Bobby Art International & Ors. v. Om Pal Singh Hoon (1996) 4 SCC 1, the
Supreme Court while dealing with the question of obscenity in the context of film called
Bandit Queen pointed out that the so-called objectionable scenes in the film have to be
considered in the context of the message that the film was seeking to transmit in respect
of social menace of torture and violence against a helpless female child which
transformed her into a dreaded dacoit.
 In Ajay Goswami v. Union of India (2007) 1 SCC 143, while examining the scope of
Section 292 IPC and Sections 3, 4 and 6 of the Indecent Representation of Women
(Prohibition) Act, 1986, the Supreme Court held that the commitment to freedom of
expression demands that it cannot be suppressed, unless the situations created by it
allowing the freedom are pressing and the community interest is endangered.
 S. Khushboo v. Kanniammal (2010) 5 SCC 600- The Court held: “in the present case,
the appellant has merely referred to the increasing incidence of pre-marital sex and
called for its societal acceptance. At no point of time appellant described the sexual act
or said anything that could arouse sexual desires in the mind of a reasonable and prudent
reader.”
 Aveek Sarkar v. State of W.B., 6 (2014) 4 SCC 257- The Supreme Court held: “We
have to examine whether the photograph of Boris Becker with his fiancée Barbara
Fultus, a dark-skinned lady standing close to each other bare bodied but covering the
 breast of his fiancée with his hands can be stated to be objectionable in the sense it
violates Section 292 IPC. Applying the community tolerance test, we are not
prepared to say such a photograph is suggestive of deprave minds and designed to excite
sexual passion in persons who are likely to look at them and see them, which would
depend upon the particular posture and background in which the woman is depicted or
shown. Breast of Barbara Fultus has been fully covered with the arm of Boris Becker,
a photograph, of course, semi-nude, but taken by none other than the father of Barbara.
Further, the photograph, in our view, has no tendency to deprave or corrupt the minds
of people in whose hands the magazine Sports World or Anandabazar Patrika would
fall........ We may also indicate that the said picture has to be viewed in the background
in which it was shown, and the message it has to convey to the public and the world
at large. The cover story of the Magazine carries the title, posing nude, dropping of
harassment, battling racism in Germany. Boris Becker himself in the article published
in the German magazine, speaks of the racial discrimination prevalent in Germany and
the article highlights Boris Becker’s protests against racism in Germany. Boris
Becker himself puts it, as quoted in the said article: “the nude photos were supposed to
shock, no doubt about it....... What I am saying with these photos is that an inter-racial
relationship is okay.”.......... The message, the photograph wants to convey is that the
colour of skin matters little and love champions over colour. Picture promotes love
affair, leading to a marriage, between a white-skinned man and a black skinned woman.
We should, therefore, appreciate the photograph and the article in the light of the
message it wants to convey, that is to eradicate the evil of racism and apartheid in the
society and to promote love and marriage between white skinned man and a black
skinned woman.”
The Supreme Court finally held: “while judging as to whether a particular
photograph, an article or book is obscene, regard must be had to the contemporary
mores and national standards and not the standard of a group of susceptible or
sensitive persons.”
 Felix M.A. vs. P.V. Gangadharan, WP(C).No. 7778 of 2018, Kerala High Court,
decided on 08th March 2018- The Kerala High Court held: “Going by the
contemporary community standards —and without troubling ourselves with patent
offensiveness—we may observe that, given the picture’s particular posture and its
background setting (mother feeding the baby), as depicted in the magazine, it is not
prurient or obscene; nor even suggestive of it.”
 Live in relationship

1. Live-in-relationship is a relationship with an informal arrangement between two

heterosexual persons to live together without entering into the formal institution
like marriage. Live in relationship is a western concept and famous there.
2. In simple word, Live-in-relationship is the arrangement in which a man and a woman
live together without getting married
3. Currently the law is unclear about the status of such relationship though a few rights
have been granted to prevent gross misuse of the relationship by the partners.
4. Legalizing live in relationship means that a totally new set of laws need to be framed
for governing the relations including protection in case of desertion, cheating

CAUSES OF LIVE-IN-RELATIONSHIP

in modern time people are opting live-in relationship because of

1. to test the relationship before marriage,

2. they are unable to marry legally,

3. they do not want long lasting relation, it is easy to establish and dissolve
4. When a marriage is performed according to the law and religion it creates rights and
duties which cannot be blown away easily. But in live-in relationship it can be

List is long, It varies with different individuals with different individualities

Live in relationship that creates rights and duties and recognized is often termed as
“common law marriage.

LIVE-IN-RELATIONSHIP AND RIGHTS OF WOMEN IN INDIA

Unlike other western countries like USA and UK, India does not recognize the live-
inrelationship. Because of the traditional principles in the society and dependency of female
on male, India is still following the institution of marriage as the best forming part of society

Live-in-relationship can be categorized in two parts, either „by choice‟ or „by circumstance‟.
People who by consent voluntarily are living together are under the category of „by choice‟.
But sometimes by mistake or by fraud people are living together as husband and wife then
they can be placed under the category of „by circumstance‟. 5 Live-in-relationship by choice
does not have any legal issue as it does not need the legal recognition but live-in-
relationship by circumstances has certain problems

As comparison to marriage, live-in-relationship does not give the status of husband and
wife. The couples who are living together are called partners only. But they are also not
partners under partnership act.

For marriage we need to fulfill first the provisions given under section 5 of Hindu Marriage
Act 1955 then section 7 of the same Act. But often in live-in-relationship by circumstance
people claimed that they got marriage by fulfilling the section 5 condition but this is not the
case.

Justice Malimath Committee (2003)6 recommended to the Law Commission of India2003, that if a
woman has been in a livein-relationship for a considerable period of time then she can claim
maintenance under Section 125 of Criminal Procedure Code.

JUDICIAL RESPONSE
The Fundamental right under Article 21 of the Constitution of India grants to all its citizens
“right to life and personal liberty” which means that one is free to live the way one wants.
Live in relationship may be immoral in the eyes of the conservative Indian society but it is
not “illegal” in the eyes of law.

Lata Singh v. State of UP12 held that live-in relationship is permissible only in unmarried major
persons of heterosexual sex. The live-in relationship if continued for such a long time, cannot be
termed in as “walk in and walk out‟ relationship and there is a presumption of marriage between
them.

Indira Sarma V. V.K.V. Sarma it declared that Live-in or marriage-like relationship is neither a crime
nor a sin though socially unacceptable in this country

NEED OF LEGISLATION ON LIVE-IN-RELATIONSHIP

In some cases, couples have been granted all the rights and liabilities as
guaranteed under a marital relationship while in others it has been held that
they are not entitled to them.
If the rights of a wife and a live-in partner become equivalent it would promote bigamy and there
would arise a conflict between the interests of the wife and the live-in-partner.

Again Malimath committee Report 2003 recommended for the amendment of Section 125 of
Criminal Procedure Code to include women in a void marriage or women in live-inrelationship to
claim maintenance

It is clear that live-inrelationship is not a marriage. It is harm to the legally wedded wife and her
children if the husband is in such a relationship. So as the personal law is the principal law governing
to the relationship eminence, it needs to be cleared and need an amendment.
 MARTIAL RAPE
Whenever any person without free consent of his or her partner or mate
create or tries to create sexual relationship is known as rape it is defined
in section 375
Exception to it is
1. Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under fifteen years of age, is not rape

No criminalization of marital rape is leading to the violation of the Right

to Equality guaranteed under Constitution of India. Article 14 of
Indian Constitution. This Article in Constitution provides protection
of law to every person but the criminal law of India discriminates female
victims who have been raped by their own husbands and it violates the
Constitutional provision. When IPC was drafted, a married woman was
not considered to be an independent entity , rather she was considered
to be the chattel of her husband.
But times have changed and now Indian law treats husband and wife as
separate and independent legal entity. And to protect women from
sexual harassment and violence ― The Protection of women from
Domestic violence Act 2005‖ and the ―Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act 2013.
In Budhan Chadhary v. State of Bihar1 and State of West
Bengal v. Anwer Ali Sar , the Hon’ble Supreme Court held that ―any
classification under Article 14 of the Constitution of India is subject to a
reasonableness test that can be passed only if the classification has some
rational nexus to the objective.‖ The exception 2 exempt husband from
such is totally contradictory to objective.
Article 21 of the Constitution of India provides Right to Life and Personal
Liberty. The Supreme Court has held that the term ― life‖ under Article
21 is restricted to merely animal existence but it is much more than that.
The courts in recent years have acknowledged the right to abstain from
forceful sexual intercourse and unwanted sexual activity by husband
under right to life. The Punjab and Haryana High Court in Surjit Singh
Thind v. Kanwaljit Kaur6 , has held that allowing medical examination of
a woman for her virginity would amount to violation of her right to
privacy and personal liberty enshrined under Article 21.
Exception 2 of Section 375 violates the provisions of Article 21. It
infringes right to live with human dignity, right to privacy, right to
healthy life, right to choice of making sexual relations
The right to life enshrines the right of reproductive autonomy, inclusive of the right to
procreation and parenthood, which is not within the domain of the State, and does not warrant
interference of a fundamental right. It is for the person and not the State to decide modes of
parenthood. It is the prerogative of person(s) to have children born naturally or by surrogacy in
which the State, constitutionally and legally cannot interfere or impose itself. Moreover,
infertility cannot be made compulsory to undertake surrogacy.

ARGUMENTS AGAINST COMMERCIAL SURROGACY

The key arguments against commercial surrogacy from the perspective of the rights of the
surrogateare that inherent in commercial surrogacy arrangements is the exploitation of the
surrogate and thatsurrogacy commodifies the surrogate, reducing her to her womb.

Proponents of the view that commercial surrogacy constitutes exploitation of the

surrogatefrequently assert that surrogacy is an option of last resort for financially desperate
women andtherefore takes advantage of their desperation.

It also links the exploitation argument with theview that commercial surrogacy constitutes
discrimination against women as, according to thisperspective:surrogacy arrangements exist only
because there are women sufficiently economically disempowered tofind becoming a surrogate
an attractive way to earn money.

it also amounts to race-based and class-based discrimination given that intendedparents generally
have access to greater resources than women who become surrogates. It is argued that such
commodification is harmful as it results ina dollar value being placed on women’s bodies, in
effect treating them as objects to be bought. It is argued that such commodification is harmful as
it results ina dollar value being placed on women’s bodies, in effect treating them as objects to be
bought.

Finally, perhaps the most persuasive argument in support of commercial surrogacy as regards
thehuman rights of the surrogate concerns a woman’s right to privacy / autonomy, which
includes herright to make choices regarding her own life and body.39Pursuant to this argument,
if a woman ismaking a free and fully informed decision to be a surrogate, then to prevent her
from doing so is infact to impinge on her right to autonomy.

After all, it is clear that Indian surrogates may benefit substantially from the arrangement;in the
words of one surrogate, “[w]e need the money and they need the child” thus from thisperspective
the arrangement is mutually beneficial,

On the one hand, surrogacy has become a means of survival and atemporary occupation for some
poor rural women.90More than that, surrogacy enables poor women toearn an amount of money
which can significantly alter the course of their lives.
the right to autonomy enshrined in international human rights law includes theright to choose to
be a surrogate. This right should be protected by the domestic laws of individualcountries which
should include appropriate safeguards to ensure that such a decision is a free and fullyinformed
decision.

Australia’s current approachwhich embraces the prohibition of commercial surrogacy is a

paternalistic approach that denies theautonomy rights of Australian women.

INDIAN

The Union Cabinet passed the Surrogacy (Regulation) Bill, 2016, legal experts maintain that it
will not stand the test of constitutional rights. In a panel discussion on the subject, held on
Friday, Soli Sorabjee, former attorney general of India said that the bill imposes restrictions that
are in “violation of basic rights of privacy and fundamental rights of reproductive autonomy.

The Acts through their discriminatory, exclusionary, and arbitrary nature deny agency and
autonomy in the discourse on reproductive justice and provide a state-sanctioned notion of the
ideal family that restricts reproductive rights
ESSENTIAL RELIGIOUS TEST
Shri Shirur Mutt case
[w]hat article 25(2)(a) contemplates is not regulation by the State of religious
practices as such, the freedom of which is guaranteed by the Constitution except
when they run counter to public order, health and morality
Sardar Sarup Singh v State of Punjab
It was observed that no authoritative text had been placed before the Court to
show that direct election by the entire Sikh Community to the Gurudwara
Committees in charge of the management was essential to the religion itself.
Durgah Committee, Ajmer v Syed Hussain Ali
Similarly, even practices though religious may have sprung from merely
superstitious beliefs and may in that sense be extraneous and unessential
accretions to religion itself. The protection must be confined to such religious
practices as are an essential and an integral part of it and no other.
Sardar Syedna Taher Saiffuddin Saheb v State of Bombay
it was further observed that what constitutes an essential practice is to be
gathered from the texts and tenets of the religion.
Tilkayat Shri Govindlaji Maharj v State of Rajasthan
It was held that a practice is considered essential to a religion if it is essential to
the community following the religion.
Commissioner of Police v Acharya Jagadisharananda Avadhuta
The Court observed that in order to determine whether or not a particular
practice is an essential part of religion, the test must be whether the absence of
the practice itself fundamentally alters the religion.

ARGUMENTS RELATED TO PRIVACY AND AUTONOMY

1. Justice chandrachud, ERP, This is nothing but the appropriation of a
religious function by the state, and a blatant attack on the autonomy of
religions. The irony, of course, is that this is done by the state in the name
of protecting religious freedom.
2. that the law’s overreach into religious matters has destroyed the internal
capacity of religion to reform and regenerate.
 3. it is important for SC, to also recognise the dangers of overreach, which
might damage the religion’s capacity for organic growth and internal
reform.

4. That PRACTICES are aspects of individual and often social expression

and therefore – regardless of whether the motivation to do them is
religious or otherwise – they are protected under the rights to free speech
and privacy

5. Once the rights to freedom of expression and privacy are triggered, the
analysis moves to restrictions, where the test of proportionality applies.
Proportionality requires, among other things, that the State adopt the least
restrictive method in order to achieve its goals. Thus, where something
less than a ban would suffice, a ban is disproportionate

6. This idea was further articulated in the judgement of Navtej Johar v

Union of India dealing with Section 377 of the Indian Penal Code which
criminalised homosexual sexual acts. Whilst striking it down on the anvil
of privacy, autonomy and discrimination,

the commitment to pluralism and respect for group autonomy must be

understood within a Constitutional framework that places individual freedom and
dignity at its heart. The Constitution recognises group autonomy because, often,
group life promotes individual freedom and dignity. Community, after all, is
crucial to self-development. But groups can also restrict freedom and dignity, and
it is in those circumstances that a Court must step in and balance the competing
claims.
 EX post facto environment clearance

The Precautionary Principle: this principle has been considered as

the most important principle of sustainable development. It means

1. Environmental measures by the state government and the local

authority must anticipate, prevent the causes of environmental
degradation.

2. Where there are threats of serious and irreversible damage, lack

of scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.

3. The ‘onus of proof' is on the actor or the developer to prove that

his action is environmentally benign

o Polluter Pays Principle: It states that the polluter should bear the
cost of damage caused by it to the natural environment.
o Sustainable Development Principle: It states that the State
should try to strike a balance between development and
environment.

Public trust Doctrine: It states that resources like water, air, sea and forest
have a great importance to the general public that it would be unjustified to
make it the subject of private ownership.

Pahwa Plastics

In June 2021, the National Green Tribunal (NGT) held that industrial units
that manufacture synthetic organic chemicals – specifically, in the state of
Haryana – were required by law to obtain environmental clearance from
the Union environment ministry before commencing operations. The units
were also required to prepare an environment impact assessment report.

since none of the units in question had a prior environmental clearance,

the NGT found to be operating in violation of the law. Subsequently, the
aggrieved industrial units approached the Supreme Court to challenge
the tribunal’s decision.
They argued that they were “bona fide under the impression” that
they were not required to obtain environmental clearance.
The manufacturing units of the Appellants appoint about 8,000
employees and have a huge annual turnover. An establishment
contributing to the economy of the country and providing livelihood ought
not to be closed down only on the ground of the technical irregularity of
not obtaining prior Environmental Clearance irrespective of whether or
not the unit actually causes pollution.
Ex post facto environmental clearance should not be granted routinely,
but in exceptional circumstances taking into account all relevant
environmental factors.
Analysis
At the heart of the judgement is the legality of post facto clearances
Pahwa Plastics is also bound to have a ripple effect because it doesn’t
recognize as an infringement of the constitutional right to clean air and
water and balanced ecosystems.
The court also repeatedly stated that “post facto approval” is permitted
under the Environment (Protection) Act 1986.
In Pahwa Plastics, the Supreme Court invoked the doctrine of
proportionality to hold that closing an industrial unit would be
disproportionate to the offence committed. That is, administrative action
shouldn’t be more drastic than it ought to be to obtain the desired result.
Both Pahwa Plastics and Electrosteel are problematic for another reason:
they address environmental issues within the narrow lens of pollutio
 GIG WORKERS
Facts
The case began when two drivers, Farrar and Yaseen Aslam,
took Uber to court on behalf of a group of about 20 others who
challenged the self-employed status of gig-economy workers.
Arguments by company

Uber, like many delivery and courier companies, has argued

that its drivers are independent self-employed “partners” not
entitled to basic rights enjoyed by workers, which include the
legally enforceable minimum hourly wage and a workplace
pension.
Decision
The court concluded that the drivers were workers because of
Uber’s level of control over them, including setting fares and
not informing them of a passenger’s destination until they were
picked up
US
The US government on Tuesday proposed a rule change that
suggested changes would require workers to be labeled as
employees when they are "economically dependent" on a
company, giving them more benefits and legal protections
compared to the contractor status
It directs employers to consider six criteria for determining
whether a worker is an employee or a contractor. The criteria
include the degree of control by the employer, whether the work
requires special skills, the degree of permanence of the
relationship between worker and employer and the investment
a worker makes, such as car payments.
India
here in 2020 Social Security code was passed in both the houses of the
parliament and also received assent from the president. The law is
named as Social Security Code, 2020 the act provides protection to gig
workers.
As per this code they will entitle to various social security benefits

 Life and disability cover;

 Accidental insurance;
 Health and maternity benefits;
 Old age protection

Ram Singh and Ors. V. Union Territory, Chandigarh and Ors the worker
was considered as an employee because the employer had control over
his action, the employer was paying his wages thus the court termed it
under an employer-employee relationship.

The legislature in the recent social security code has made a separate
category for gig workers so that they can claim social security benefits.
However, a better solution could have been enacting separate legislation
which only covers the benefits and rights of non-standard workers.
 RIGHT TO EDUCATION for PWD

The Supreme Court is considered as the guardian of the Constitution and the various rights
that are provided under it. Judiciary has played an important role in recognising the right to
education. In Mohini Jain v. Union of India[24] Hon’ble Apex court held that the right to
education is a fundamental right enshrined under the Constitution. It was further held that
there cannot be a right to life without the right to education. Next year in the celebrated
judgement of Unni Krishnan v. State of Andhra Pradesh[25], Supreme Court further
reiterated the fundamental right of education under Article 21. After this judgement the 86th
Constitutional Amendment Act, 2002 was made which inserted Article 21A and 51A(1)(k).

The Delhi High Court in Social Jurist v. Government of NCT of Delhi[27] considered that,
on the basis of the RTE Act, children with disabilities had the right to access all schools,
whether aided or unaided by the Government. The Court acknowledged that the absence of
such facilities creates a “vicious cycle”, where children with disabilities don’t seek admission
due to the absence of such facilities, thereby rendering their right to education
meaningless.[28] In Pramod Arora v. Governor of Delhi[29], the Court considered that the
fact that “children with disabilities” faced even greater marginalization than other groups of
children from disadvantaged groups and therefore, their inclusion within the education set up
only created a higher burden of affirmative action by the Government, in view of the right to
equality under Article 14 and the statutory scheme, to ensure meaningful inclusion within the
education set up.

In Kamal Gupta v. State of Uttarakhand[30] Uttarakhand High Court proposed a reporting

mechanism which allowed for admission for children with disabilities in line with
information on aided and unaided schools which had the facilities to cater to them. However,
it is clear that after the RPWD Act came into force, all schools are required to meet the
conditions of reasonable accommodation. At the same time, Courts continue to refer to the
provisions of the old Act in interpreting the scope of education for children with disabilities
even after the Act came into force.

The scope of the obligations under the RPWD was thereafter considered by the Delhi High
Court in Syed Mehedi v. Government of Delhi[31], wherein the Court conducted, to an
extent, the exercise referred to it Part III of this paper i.e. the recognition that the duty cast by
Sections 16 and 17 of the RPWD is binding.
While the Court read the obligations of the RTE Act and RPWD Act together, the obligations
under Section 16 of the RPWD Act require reading into the norms and standards under the
RTE Act to ensure substantive compliance by all schools as per the legislative intent of the
RPWD Act.
Child Labour and Child Rights

 M.C. Mehta vs. State of Tamil Nadu AIR 1997 SC 699: The Supreme Court
gave certain directions on the issue of elimination of child labour:
1. Survey for identification of working children;
b. Withdrawal of children working in hazardous industry and ensuring their
education in appropriate institutions;
c. Contribution @ Rs.20,000/- per child to be paid by the offending employers of
children to a welfare fund to be established for this purpose;
d. Employment to one adult member of the family of the child so withdrawn from
work and if that is not possible a contribution of Rs.5,000/- to the welfare fund
to be made by the State Government;
e. Regulating hours of work for children working in non-hazardous occupations
so that their working hours do not exceed six hours per day and education for at
least two hours is ensured. The entire expenditure on education is to be borne
by the concerned employer.
f. The implementation of the direction of the Hon’ble Supreme Court is being
monitored by the Ministry of Labour and compliance of the directions have been
reported in the form of Affidavits on 05.12.97, 21.12.1999, 04.12.2000,
04.07.2001 and 04-12-2003 to the Hon’ble Court on the basis of the information
received from the State/UT Governments.
 Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1: the Supreme
Court directed the central government
o to issue suitable notifications prohibiting the employment of children in
circuses within two months from today.
o to conduct simultaneous raids in all the circuses to liberate the children
and check the violation of fundamental rights of the children.
o to rehabilitate the rescued children
 o Supreme Court of India in Sampurna Behura v. Union of India1 issued some
directions to the appropriate authorities and said:
The Home Departments and the Director Generals of Police of the States/Union
Territories will ensure that at least one police officer in every police station with
aptitude is given appropriate training and orientation and designated as
Juvenile or Child Welfare Officer, who will handle the juvenile or child in
coordination with the police as provided under sub-section (2) of Section 63 of
the Act.
In order to check the status of the existing infrastructure for rehabilitating the
juveniles, the Supreme Court has recently in Re - Inhuman Conditions In 1382
Prisons2 issued notice to the concerned Ministry. The court ordered:
[W]e issue notice to the Secretary, Ministry of Women and Child
Development, Government of India, is to require a manual to be prepared
by the said Ministry that will take into consideration the living conditions
and other issues pertaining to juveniles who are in Observation Homes
or Special Homes or Places of Safety in terms of the Juvenile Justice
(Care and Protection of Children) Act, 2015.3
o In Gaurav Jain v. Union of India,4 the Supreme Court of India directed the government
to rehabilitate the children of prostitutes. It was ordered that the children of
prostitutes should not be allowed to live with their mothers in the undesirable
surroundings of prostitute homes. They require accommodation and rehabilitation in
reformatory homes.
o In Delhi Commission for Women v. Delhi Police,5
In Monitoring Guidelines for NCPCR / SCPCR for Roles and Functions of Various
Stakeholders: Child Welfare Committees / Support Persons, and Health Professionals,
following psychological aids for child victims have been directed: 6
 Victims of sexual violence need to be treated emotionally. For that matter,
the first responsibility of the concerned authorities is to provide

1
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No. 473 OF 2005, decided on
October 12, 2011, available at http://ncpcr.gov.in/show_img.php?fid=513
2
In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No.406/2013, ordered on
February 5, 2016, available at http://supremecourtofindia.nic.in/FileServer/2016-02-05_1454655606.pdf
3
Id., para 59.
4
AIR 1990 SC 292.
5
In The High Court Of Delhi at New Delhi, W.P.(CRL) 696/2008, ordered on APR. 23, 2009.
6
Ibid.
 psychological first aid to the victims of sexual abuse. Health professionals
should examine the victim’s state of mind. Victims’ feelings, emotions and
psychology should be examined. Victims should be provided the candid
atmosphere.
 Child victims should be treated carefully by the health professionals. While
conducting the medical examination, counselling, treatment of and sharing
of the information with the child victims, the health professionals should use
simple language.
o Health professionals should win the trust of the child victims so that they could speak
without any hesitation.
o Harsh Mader v. Union of India, Delh. HC, Aug. 8, 2018,-- Delhi High Court quashed
the legal provisions that criminalise it, and held that people beg on the streets not
because of their wish but as a “last resort” to meet their needs. Criminalising
begging violates the most fundamental rights of some of the most vulnerable people in
our society. The court blamed the state for not being able to ensure even the bare
essentials of the right to life to all its citizens. The court further said criminalising
begging was a wrong approach to deal with the underlying causes of the problem
and it ignored the reality that people who beg were the poorest and marginalised
in society. The court said the state cannot fail to do its duty to provide a decent life
to its citizens and add insult to injury by arresting, detaining and imprisoning
those who beg in search for essentials of bare survival, which is even below
sustenance. A person who is compelled to beg cannot be faulted for such actions
in these circumstances and any legislation, penalising them was in the teeth of
Article 21 (protection of life and liberty) of the Constitution. The Court said, “If
we want to eradicate begging, artificial means to make beggars invisible will not
suffice. A move to criminalise them will make them invisible without addressing
the root cause of the problem. The root cause is poverty, which has many
structural reasons: no access to education, social protection, discrimination based
on caste and ethnicity, landlessness, physical and mental challenges, and
isolation.”
o Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469- Inter-Country
Adoption case—Court directed to constitute A regulatory body---Central
Adoption Resource Agency (for short ‘CARA’) was recommended for creation
and accordingly set up by the Government of India in the year 1989---In this
 judgment, the Court noted that the absence of legal regulation of inter-country
adoptions in India could cause enormous harm to Indian children who may, for
example, be exposed to the abuses of profiteering or trafficking. In order to protect
the welfare of children, the Court, in consultation with several social or child welfare
institutions, laid out a comprehensive framework of normative and procedural
safeguards for regulating inter-country adoption as protection against abuse,
maltreatment or exploitation of children and to secure them a healthy, decent family
life. While formulating standards and procedures the Court referenced various relevant
laws and policies including Articles 15(3), 24, and 39 of the Indian Constitution
regarding child welfare, and the principles embodied in the U.N. Declaration on the
Rights of the Child (1959). The delineated safeguards include, amongst several others,
the requirement that foreigners wishing to adopt be sponsored by relevant
licensed agencies in their own country, that no adoption application from a
foreigner should be entertained directly by any adoption agency in India, that
agencies working on inter-country adoptions and licensed by the Government of
India must meet certain stipulated criteria and undertake specific responsibilities
in ensuring the safety and well-being of adopted children, and that all inter-
country adoption proceedings must be approved by the local courts.
o Shabnam Hashmi v. Union of India, 2014, Supreme Court---This judgment is
based on Uniform Civil Code---Adoption of Child---Supreme Court has decreed
that prospective parents irrespective of their religious background are free to
adopt children after the prescribed procedure. The Court said, “personal beliefs
and faiths, though must be honoured, cannot dictate the operation of the
provisions of an enabling statute.” The Supreme Court of India declared that the
right to adopt a child by a person as per the provisions of the Juvenile Justice Act
would prevail over all personal laws and religious codes in the country.
 FAST FASHION
Greater public awareness of the climate crisis has pressured large retailers to ‘green’
production chains and make them more sustainable, but the bulk of the work is yet to
be done:
the fashion industry emits up to 10 per cent of global carbon emissions and
continues to be the second-largest consumer of water. The culture generated by fast
fashion to update your wardrobe for this year’s new look has also generated high
levels of water pollution, contamination and waste with detrimental effects on the
environment and human health.
The increase in demand generated by fast fashion’s culture has induced destructive
consequences for the world’s water supply, 93 billion cubic metres of which is used
by the fashion industry annually. Below are the main sources of the textile industry’s
water pollution.
SOURCES OF WATER POLLUTION BY THE FASHION INDUSTRY
1. COTTON FARMING
The most widely used natural fabric for clothing, cotton requires large amounts of
water for irrigation and treatment, depleting local freshwater and groundwater
resources. To increase the production required to fulfil this high demand, pesticides
and fertilisers are often used to increase cotton output - posing threats to local
biodiversity and water resources.
2. SYNTHETIC FABRIC PRODUCTION
Wastewater from the production of synthetic fabrics, releases lead, arsenic, benzene
and other pollutants into water sources.
3. CONTAMINATED WASTEWATER
Fabric dying and treatment practices generate about 20 percent of the world’s
wastewater. In Bangladesh alone, 1,500 billion litres of water are used annually in
garment factories and mills, depleting the region’s dwindling groundwater resources
4. MICROFIBRE POLLUTION
Little visible but highly dangerous, the textile industry’s pollution of water sources
with microfibres (tiny synthetic fibres) has worried environmentalists all over the
world, especially since these can spread across rivers and oceans.
These fibres are released not only during the production process, but also after
purchasing, when clothes are worn and washed. Microfibre pollution from synthetic
materials can take hundreds of years to decompose and can disrupt underwater
ecosystems.
In the past, the world’s largest retailers, such as Zara, Puma and Armani, have been
linked to water pollution scandals in China. Companies like Gap Inc. and H&M have
acknowledged their role in water pollution and have enforced measures to reduce
water-use and contamination across their manufacturing process.
SOLUTIONS
1. SUSTAINABLE COTTON FARMING
The enterprise which are buying from their vendor need to assists farmers in
sustainable water management, reducing agrochemical use and promoting decent
work environments.

2. CHOOSE SUSTAINABLE MATERIALS

To reduce their environmental impact, consumers should choose garments made of
natural fibres that require less water in the manufacturing process, such as linen or
organic cotton
3. REDUCED CONSUMPTION AND PRODUCTION
While fashion is a powerful method of self-expression and the fashion industry has
been integral to economic growth and development, the current rates of
consumption and production cannot continue without exacerbating the dangerous
consequences for the environment.
 Article 48-A: The State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the country.
 Article 51A(g): It is a duty of every citizen to protect and preserve the
environment.

Subhash Kumar vs. State. of Bihar- (1991) 1 SCC 598, the Supreme Court held
that right to life is a fundamental right under Art. 21 of the Constitution and it
include the right to enjoyment of pollution free water and air for full enjoyment of
life. If anything endangers or impairs that quality of life in derogation of laws a
citizen has recourse to Art.32 of the Constitution for removing the pollution of water
or air which may be detrimental to life.