Yaga Lakku Endsem
Yaga Lakku Endsem
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:
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.
India
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.
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)
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.
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
CAUSES OF LIVE-IN-RELATIONSHIP
Live in relationship that creates rights and duties and recognized is often termed as
“common law marriage.
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
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
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.
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.
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.
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
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.
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.
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.
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.