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C-32

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION,


2016
IN THE HONBLE SUPREME COURT OF MALP
ORIGINAL WRIT JURISDICTION
UNDER ARTICLE 32 OF THE CONSTITUTION OF MALP

WRIT PETITION (CIVIL) NO. 47 OF 2016


YOUNG PALSHTIYA WOMEN ORGANISATION
(PETITIONER)
V.
UNION OF MALP & ORS.
(RESPONDENTS)

&
WRIT PETITION (CIVIL) NO. 23 OF 2016
M S. X
(PETITIONER)
V.
TRANS PALSHIAN UNIVERSITY& ORS.
(RESPONDENTS)

UPON SUBMISSION TO THE HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF MALP

ON SUBMISSION TO THE REGISTRY OF THE COURT


OF THE HONBLE SUPREME COURT OF MALP

~MEMORIAL FOR THE PETITIONER ~

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

ABBREVIATIONS

EXPANSIONS

PARAGRAPH

PARAGRAPHS

A.P

ANDHRA PRADESH

AIR

ALL INDIA REPORTER

ART.

ARTICLE

ASS.

ASSAM

BIH.

BIHAR

DEL.

DELHI

ECHR

EUROPEAN COURT OF HUMAN RIGHTS

GUJ.

GUJARAT

HC

HIGH COURT

H.P

HIMACHAL PRADESH

HAR.

HARYANA

KARNA.

KARNATAKA

LJ.

LAW JOURNAL

LTD.

LIMITED

MAD.

MADRAS

MAH.

MAHARASHTRA

NGO

NON-GOVERNMENTAL ORGANISATION

NO.

NUMBER

PME

PRE- MEDICAL EXAMINATION

SEC.

SECTION

SC

SUPREME COURT

SCC

SUPREME COURT CASES

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

LIST OF ABBREVIATIONS

SCR

SUPREME COURT REPORT

SUPP.

SUPPLEMENTARY

T.N.

TAMIL NADU

U.K

UNITED KINGDOM

U.O.I

UNION OF INDIA

U.P

UTTAR PRADESH

U.S

UNITED STATES

WP

WRIT PETITION

YPWO

YOUNG- PALSHTIYA WOMEN ORGANISATION

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................... 3


WRIT PETITION NO.- 47 .................................................................................................. 3
CASES...................................................................................................................................... 6
BOOKS

.................................................................................................................................... 9

INTERNATIONAL CONVENTIONS ............................................................................................ 9

WRIT PETITION NO. - 23 ................................................................................................. 3


CASES...................................................................................................................................... 3
INTERNATIONAL CONVENTIONS ............................................................................................ 5
BOOKS

.................................................................................................................................... 5

ARTICLES................................................................................................................................ 5

CONSTITUTIONAL PROVISIONS .......................................................................................... 11


WEB RESOURCES ................................................................................................................. 11
STATEMENT OF JURISDICTION ................................................................................ 12
STATEMENT OF FACTS ................................................................................................ 13
STATEMENT OF ISSUES ................................................................................................ 15
SUMMARY OF ARGUMENTS ....................................................................................... 16
ARGUMENTS ADVANCED ...............................................................................................I
WRIT PETITION NO.- 47
I. THE WRIT PETITION IS MAINTABLE IN THE INSTANT CASE. .......................I
1. PETITIONER HAS LOCUS STANDI IN THE INSTANT CASE: ....................................................I
2. BASIC STRUCTURE OF THE CONSTITUTION HAS BEEN VIOLATED: .....................................I
3. ALTERNATIVE REMEDY NOT A BAR: ................................................................................. II
II.FUNDAMENTAL RIGHTS UNDER ARTICLE 14 HAVE BEEN VIOLATED IN
THE INSTANT CASE. ....................................................................................................... II
1. THE CONSTITUTIONAL REQUIREMENT OF NON-ARBITRARINESS: ................................... II
2. THE AUTHORITIES HAVE FAILED TO APPLY PRINCIPLE OF REASONABLENESS: ............ III
III. FUNDAMENTAL RIGHTS UNDER ARTICLE 25 AND 29(2) HAVE BEEN
VIOLATED IN THE INSTANT CASE. ......................................................................... III
1. RIGHT TO WEAR RELIGIOUS ATTIRE IS A FUNDAMENTAL RIGHT: ................................. III
2. SECULARISM AND BASIC STRUCTURE: .............................................................................. V
3. THE PRACTICE IS NOT BARRED BY CONSTITUTIONAL EXCEPTIONS UNDER ARTICLE 25: V
4. THE IMPUGNED CIRCULAR VIOLATES INTERNATIONAL CONVENTION: .......................... VI
5.VIOLATION OF ARTICLE 29(2): ....................................................................................... VII

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1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

WRIT PETITION NO. - 23


I.THAT THE WRIT PETITION FILED BY MS. X IS MAINTAINABLE .............VIII
1.VIOLATION OF FUNDAMENTAL RIGHTS: ........................................................................VIII
2.ALTERNATIVE REMEDY NOT A BAR: ................................................................................. IX
II.THAT THE RIGHTS UNDER ARTICLE 14 HAVE BEEN VIOLATED .............. IX
III.THAT THE RIGHTS UNDER ARTICLE 15 OF THE CONSTITUTION HAVE
BEEN VIOLATED ............................................................................................................. X
1.INDIAN CONSTITUTION AND UNIVERSALISTIC INTERPRETATION: ................................ X
2. THE TERM SEX IN ART. 15(1) CAN AND HAS BEEN INTERPRETED TO INCLUDE SEXUAL
ORIENTATION:.................................................................................................................... XI
3. SEXUAL ORIENTATION AND INTERNATIONAL LAW: ...................................................... XII
IV.THAT THE RIGHTS UNDER ARTICLE 21 HAVE VIOLATED IN THE
INSTANT CASE .............................................................................................................XIII
1. RIGHT TO PRIVACY: ......................................................................................................XIII
1.1 SEXUAL ORIENTATION AND RIGHT TO PRIVACY .........................................................XIII
2. RIGHT TO LIBERTY ......................................................................................................... XV
2.1 SEXUAL ORIENTATION AND LIBERTY ........................................................................... XV
3. RIGHT TO LIFE ................................................................................................................ XV
3.1 SEXUAL ORIENTATION AND RIGHT TO LIFE:............................................................. XVV
PRAYER ................................................................................................................................I

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1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

I NDEX OF AUTHORITIES
WRIT PETITION NO. - 47
CASES
SR. NO.

INDIAN SUPREME COURT CASES

PG. NO.

1.
2.

Aeltemesh v. Union of India, AIR 1988 SC 1768


Arunachala Nadar, M.C.V.S v. State if Madras, AIR 1950 SC
300 (303) : 1959 Supp. (1) SCR 2
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748
Commissioner Hindu Religious Endowment v. Lakshmindra,
AIR 1954 SC 282
Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 : (1962) 1
SCR 574
Deepak Chand Sibal v. Punjab University, AIR 1989 SC 903
E.P Royappa v. State of Tamil Nadu, (1974) 4 SCC 3
I.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550
K.K Konchinni v. State of Madras, AIR 1959 SC 725
Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295:
(1964) 1 SCR 332
Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC
552
M.C Mehta v. Union of India, (1987) 1 SCC 395
Mahajan v. J.M.C., (1991) 3 SCC 91
Maneka Gandhi v. Union of India (1978) 1 SCC 248
Om Kumar v. Union of India, (2001) 2 SCC 386
Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233
Ramesh Thappar v. State of Madras, (1950) SCR 594, (602-3) :
AIR 1950 SC 125
Rameshwar Prasad v. Union of India, AIR 2005 SC 4301
Ramji Lal v. State of U.P, AIR 1957 SC 620 : 1957 SCR 860
Rural litigation and Entitlement Kendra v. State of Uttar
Pradesh 1986 Supp. SCC 517
S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87
S.R Bommai v. Union of India, (1994) 3 SCC 2
Sharma Transport v. Govt of A.P., AIR 2002 SC 322
Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1

III
V

3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.

3|Page

IV
IV
I
II
III
II
I
II
III
II
IV
II
I
III
III
VII
IX
VI
V
V
I
I
II
II
II

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

28.
29.
30.
31.

INDEX of AUTHORITIES

III
II
V
VI

33.
34.

Soma Chakravorthy v. C.B.I., (2007) 5 SCC 403


State of Bombay v. United Motors Ltd., AIR 1953 SC 252
Supdt v. Ram Manohar, AIR 1960 SC 633
Tinkushia Electric Supply Co. v. State Of Assam , A.I.R. 1990
S.C. 123
Virendra v. State of Punjab, AIR 1957 SC 896 (899) : 1958 SCR
308
Waman Rao v. Union of India, (1981) 2 SCC 362
Workmen v. Meenakshi Mills, (1992) 3 SCC 336

SR. NO.

HIGH COURT CASES

PG. NO.

32.

1.
2.
3.

Syed Shah Muhammad Al Hussain v. Union of India, AIR


1999 Kant 112
Pogakula Lekshmi Reddy v. Principal Secy to Govt of A.P,
AIR 1997 AP 6
Nadha Raheem v. CBSE, Writ petition No. 21696 of 2015
(Kerala High Court, 21/07/2015)

V
II
III

IV
IV
V

SR. NO.

ECHR CASES

PG. NO.

1.

Inze v. Austria, Application no 8695/79. (1987, European


Convention of Human Rights
Kokkinakis v. Greece, Application No. 14307/88 (1993,
European Court of Human Rights)
United Communist Party of Turkey v. Turkey, Application
Number 19392/92 (1998, European Court of Human Rights)

VII

SR. NO.

AMERICAN CASES

PG. NO.

1.

Brushaber v. Union R.R, Co., 1 U.S 240 (1916, Supreme Court


of the United States)
Nebia v. N.Y., 291 U.S 502 (1934, Supreme Court of the United
States)

VI

SR. NO.

ENGLISH CASES

PG. NO.

1.

Counsel of Civil Services Union v. Minister for the Civil


Services [1985] AC 374

III

2.
3.

2.

4|Page

VI
VI

VI

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

SR. NO.

INTERNATIONAL CONVENTIONS

PG. NO.

1.
2.
3.

VI
VI
VI

9.

American Convention on Human Rights, 1969


Arab Charter on Human Rights, 2003
European Convention for protection of Human Rights and
Fundamental Freedoms as amended by Protocol 11 of 2000
European Convention on Human Rights, 1953.
International Covenant on Civil and Political Rights, 1966
The African Charter on Human's and People's Rights, 1981
The Convention on the Elimination of all Forms of
Discrimination Against Woman, 1979
United Nations Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religious Belief,
1981
Universal Declaration of Human Rights, 1948

SR. NO.

BOOKS

PG. NO.

1.

2.

Dr Subhash C. Kashyap, Constitutional Law of India, 741


(2008)
Durga Das Basu's Commentary on the Constitution of India,
1361 (Justice Y.V Chandrachud, Justice S.S Subbramani,
Justice B.P Banerjee, 8th Ed. 2008)

SR. NO.

ARTICLES

PG. NO.

1.

Mr. Nisar Mohammad Bin Ahmad, "The Islamic and International


Human Rights Law Perspectives of Headscarf: the Case of
Europe, 2 International Journal of Business and Social Science
161, 163 (2011), available at
http://ijbssnet.com/journals/Vol_2_No_16_September_2011/18.pdf

IV

4.
5.
6.
7.
8.

5|Page

VI
VI
VI
VI
VI

VI

III

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

Writ Petition No. - 23


CASES

SR. NO.

SUPREME COURT CASES

PG. NO.

1.

A.K. Gopalan v. State of Madras, (1950) SCR 88: AIR 1950


SC 27
Andhra Industrial Works v. Chief Commissioner, Pondicherry,
AIR 1962 SC 797
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 :
(1984) 3 SCC 161 :(1984) 2 SCR 67
Coffee Board v. Jt. C.T.O., Madras, AIR 1971 SC 870: (1969)
3 SCC 349; (1970) 3 SCR 147
Coimbatore Distt. Central Coop. Bank v. Employees Assn.,
(2007) 4 SCC 696
Daryao v. State of U.P., AIR 1961 SC 1457 (1461) : (1962) 1
SCR 574 : (1962) 1 SCJ 702
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : (1974)
2 SCR 348 : AIR 1974 SC 555
Francis Coralie Mullin v. Administrator, Union Territory of
Delhi and others, (1981) 1 SCC 608
G.A. Natesan, In re. AIR 1988 Madras 763

IX

2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

Harbansal Sehnia v. Indian oil Corporation Ltd. AIR 2003 SC


2120
His Holiness Kesavananda Bharati Sripadagalvaru v. State of
Kerala & Anr., (1973) 4 SCC 225
Hussainara Khatoon and Ors. v. Home Secretary, State of
Bihar, (1980) 1 SCC 81
Indian legal and Economic forum v. U.O.I (1997) 10 SCC 728
Jagannath Mahapatra v. Utkal University, (1979) 1 SLR 828
Kavalppara Kottarathil Kochunni v. State of Madras, AIR
1959 SC 725 (730) : (1959) Supp. 2 SCR 316
Kharak Singh v. State of U.P., AIR 1963 SC 1295
Kochunni v. State of Madras, AIR 1959 SC 725 (729) : 1959
(Supp-2) SCR 316 : (1959) 2 SCA 116 : 1959 SCJ 457
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
Peoples Union for Civil liberties (PUCL) v. Union of India,
AIR 1997 SC 568
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526
Rabindra Nath Bose and others v. Union of India and others,
AIR 1970 SC 470
Ramesh Thappar v. State of Madras, AIR 1950 SC 124 (126127) : 1950 SCR 594 : 1950 SCJ 418 : 1950 Cr LJ 1514
6|Page

XI
XIII
XI
IX
XIII
X
XIII
VIII
VIII
IX
XIII
VIII
VIII
VIII
XI
XI
XIII
XIII
XIII
XIII
VII
VIII

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.

INDEX of AUTHORITIES

S.A. Kini v. Union of India, AIR 1985 SC 893


S.M. Sharma v. South Gujarat University, (1982) GijLR 233
Satish Chandra v. Union of India, AIR 1953 SC 250
Suresh Kumar Koushal and another v. NAZ Foundation, Civil
Appeal No. 10972 (2013, Supreme Court of India)
Sharma Transport v. Government of A.P., AIR 2002 SC 332 :
(2002) 2 SCC 188
State of Mysore v. V.K. Kangan, AIR 1975 SC 2190
State of Mysore v. V.K. Kangan, AIR 1975 SC 2190 : (1976) 1
SCR 369 : (1976) 1 SCR 369 : (1976) 2 SCC 895 ( 16)
State of TN v. K. Shyam Kumar, (2011) 8 SCC 737: (2011) 4
CTC 874 : (2011) 5 LW 97
Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
Union of India v. G. Ganayutham, (1997) 7 SCC 463
UOI v. The Motion Pictures Associates, AIR 1999 SC 2334

VIII
VIII
X
XII
IX
VIII
IX
IX
XIII
IX
X

SR. NO.

INDIAN HIGH COURT CASES

PG. NO.

1.

Dr. Janet Jeyapaul v. SRM University & Ors., CIVIL APPEAL


No. 14553 OF 2015
Jagdish Chandra v. University of Punjab, AIR 1952 Punjab 395
S.K. Ghosh v. Utkal University, AIR 1952 Orissa 1
Sami Kumar v. State of Bihar, AIR 1982 Patna 66
; S.M. Sharma v. South Gujarat University, (1982) GijLR 233
Somawanti v. State of Punjab, AIR 1963 SC 151 (165) : (1963)
2 SCR 774
S. Prasad v. University of Calcutta, AIR 1953 Calcutta 172
Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times
277.

VIII

SR. NO.

US CASES

PG. NO.

1.
2.
3.
4.
5.
6.

Arnold v. Georgia 428 U.S. 242 (1976, Supreme Court of US)


Bolling v. Sharpe, 347 U.S. 497 (1954, Supreme Court of US)
Furman v .Georgia 408 U.S. 238 (1972, Supreme Court of US)
Kovacs v. Cooper 336 U.S. 77 (1949, Supreme Court of US)
Lawrence v. Texas 539 U.S. 558 (2003 Supreme Court of US)
Neat R. Wooby v. George Maynard, 430 US 705 (1977,
Supreme Court of US)
Price Waterhouse v. Hopkins 490 U.S. 228 (1989 Supreme
Court of US)
Proffitt v. Florida 224 S.E.2d 386 (1976, Supreme Court of
US)

XI
XI
XI
XI
XI
X

2.
3.
4.
5.
6.
7.
8.

7.
8.

7|Page

VIII
VIII
VIII
VIII
VIII
VIII
XI

XII
XI

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

9.
10.

SR. NO.
1.
2.
3.

SR. NO.
1.

SR. NO.
1.

INDEX of AUTHORITIES

Turner Broadcasting System Inc v. Federal Communications,


512 US 622 (1997, Supreme Court of US)
Wolf v. Colorado, 338 U.S. 25 (1949, Supreme Court of US)

UK CASES
Associated Provincial Picture House v. Wednesbury, (1948)
KB 223
Council of Civil Services Union v. Minister of Civil Services,
(1984) 3 All ER 935 (HL)
Dudgeon v. United Kingdom, (1981) 4 ECHR 149

UNHRC CASE
Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992,
March 31, 1994)

ECHR CASES

X
XI

PG. NO.
IX
IX

PG. NO.
XII

PG. NO.
XII

3.

Dudgeon v. the United Kingdom, Application no.


7525/76(1981, ECHR);
Laskey, Jaggard and Brown v. United Kingdom, Application
No. 1627/93, 21826/93 and 21974/93, 36(1997, ECHR)
Modinos v. Cyprus, Application No. 15070/89

4.
5.

Niemitz v. Germany, Application No. 13710/88


Norris v. Ireland, Application no. 10581/83

XIV
XV

6.
7.

S.L. v. Austria, Application No. 45330/99(2003, ECHR)


Salgueiro Da Silva Mouta v. Portugal, Application No.
33290/96
Smith and Grady v. the United Kingdom, Application No.
33985/96 and 33986/96
Osman v. The United Kingdom, Application No.
87/1997/871/1083, 115(1998, ECHR).
Inze v. Austria, Application no 8695/79

XV
XII

2.

8.
9.
10.

SR. NO.

HUMAN RIGHTS COMMITTEE

8|Page

XV
XV

XIV
XIV
VII

PG. NO.

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

1.
2.

SR. NO.
1.

INDEX of AUTHORITIES

A.R Coeriel and M.A.R Aurik v. The Netherlands,


Communication No. 453/ 1991
William Eduardo Delgado Paez v. Colombia, Communication
No. 195/1985

XIV

CONSTITUTIONAL COURT OF SOUTH AFRICA

PG. NO.

National Coalition of Gay & Lesbian Equality and Another v.


Minister of Justice and others, Case CCT 11/98

XV

XIV

SR. NO.

BOOKS

PG. NO.

1.

Durga Das Basu, Commentary on the Constitution of India, (9th


ed., 2012)
Jagdish Swarup, Constitution of India, By Dr. L.M. Singhvi,
(2nd ed., 2011)
Judicial remedies in Public law by Clive Lewis, (2004)
M.K Mallick, Law and Practice, (12th ed.)
Samaraditya Pal, Indias Constitution, Origins and Evolution,
(2014)

VIII

SR. NO.

INTERNATIONAL CONVENTIONS AND OTHER MATERIALS

PG. NO.

1.

General Assembly, Resolution 57/214, Extrajudicial, summary


or arbitrary executions, 18/12/2002

XVI

2.

XVI

3.

UN General Assembly, Resolutions on Extrajudicial,


summary or arbitrary executions No. 61/173 of 20/12/2006
International Convention on Civil and Political Rights, 1976

4.

European Convention on Human Rights, 1950

XVI

5.

American Convention on Human Rights, 1969

XVI

6.

Arab Charter on Human Rights, 1994

VI

7.

Universal Declaration on Human Rights, 1948

XV

8.

Charter of Fundamental rights of the European Union, 2001

XIII

2.
3.
4.
5.

9|Page

VIII
VIII
VIII
XI

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

9.

International Convention on the Protection of the Rights of all


Migrant workers and Members of their families,1990

XVI

10.
11.

Convention on the Rights of the Child,1989;


United Nations Declaration on the Rights of Indigenous
Peoples, 2007
African Charter on Human Rights and Peoples Rights, 1981
African Charter on the Rights and Welfare of the Child, 1999
American Declaration on the Rights and Duty of the Man,1948
American Convention on Human Rights,1969
Arab Charter on Human Rights,1994
European Convention on Human Rights, 1950
Charter of fundamental rights of the European Union,2000
The Cairo declaration on Human rights in Islam, 1990.
Declaration on the Human Rights of Individuals who are not
Nationals of the country in which they live, 1985
United Nations principles for Older persons, 1991
American Declaration on the rights and duties of man, 1948

XVI
XVI

12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.

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XVI
XVI
XVI
VI
XVI
XVI
XIII
XIII
XIII
XIII
XIII

1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

INDEX of AUTHORITIES

SR. NO.

CONSTITUTIONAL PROVISIONS

PG. NO.

1.
2.
3.
4.
5.
6.
7.
8.
9.

Article 12
Article 13
Article 14
Article 15
Article 21
Article 25
Article 29
Article 30
Article 32

passim
passim
passim
passim
passim
passim
passim
passim
passim

SR. NO.

WEB RESOURCES

1.

www.westlaw.india.com(WEST LAW INDIA)

2.

www.manupatrafast.com(MANUPATRA)

3.

www.judis.nic.in(SUPREME COURT OF INDIA OFFICIAL)

4.

www.jstor.org(JSTOR)

5.

www.scconline.com(SCC ONLINE)

6.

www.legal.un.org. (UNITED NATIONS)

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1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

STATEMENT of JURISDICTION

S TATEMENT OF J URISDICTION

The Petitioner has humbly approached the Honble Court under Article 32 of the Constitution of
Malp. The present memorandum contains the facts, contentions and arguments of the present case.

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1st P.A. INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016


MEMORIAL for THE PETITIONER

STATEMENT of FACTS

S TATEMENT OF FACTS
WRIT PETITION-47
1. HISTORICAL BACKGROUND OF PALSHTIYAS IN REPUBLIC OF MALP: Malp remained
under the rule of Palsh, a developed Western nation. During the Palshian era in Malp,
several Palshian philosophers & religious leaders brought about considerable impact upon
the Palshian culture in the territory.
2. THE PREVAILING LEGAL SYSTEM IN MALP: The text of the Constitution of Malp is same
as that of the Constitution of India. As such all the statutes, laws, etc. in force in India are
also mutatis mutandis applicable in Malp. It is also a member of the UNO and is a party to
the international conventions, treaties etc in the same manner as India.
3. CIRCUMSTANCES

LEADING TO ISSUE OF IMPUGNED CIRCULAR BY THE

MEB: MEB of

Malp is the central body responsible for regulation of medical education in the country. In
the year 2015, PME were held across the country and large scale cheating syndicate was
unearthed. On a WP filed by several aspirants, the Apex Court of the country set aside the
entire examination and ordered for fresh examination. As a result, the MEB issued the
impugned circular wherein the candidates were prohibited from wearing headgear like
headscarves, burqa, habit etc., so as to prevent employing of hidden gadgets.
4. CIRCUMSTANCES

LEADING TO FILING OF INSTANT WRIT PETITION BEFORE

HONBLE

COURT: YPWO, a registered NGO filed the instant PIL under Art. 32 of the Constitution
and challenged the constitutional validity of the impugned circular. The orders violated the
cultural rights of Palshtiya women of wearing the headscarf and full sleeve dress, as it is
mandated by their religion to be the dress code in public and also affected Shran women,
who do not have such dress code.

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MEMORIAL for THE PETITIONER

STATEMENT of FACTS

WRIT PETITION-23

1. SITUATION

IN

MALP: The Republic of Malp is a developing country which is well

diversified in terms of religion, language and culture. In modern times, Malp has seen a
change in the outlook of the society and social-inclusion of the weaker and stigmatised
sections of the society like the LGBT community.
2. PREVAILING LEGAL SYSTEM: The text of the Constitution of Malp is same as that of the
Constitution of India. As such all the statutes, laws etc. in force in India are also mutatis
mutandis applicable in Malp. It is also a member of the UNO and is a party to the
international conventions, treaties etc. and has ratified them, similar to those by India.
3. CIRCUMSTANCES LEADING TO FILING OF WP BEFORE THE HONBLE COURT: Ms. X, a
Palayan native of the Shran faith, took admission in the Trans Palshtiya University, a
state aided religious institution, where she was allotted a room in a hostel. However,
soon afterwards, the university received complaints from other girls that they did not
wish to stay with her on account of her sexual orientation as a lesbian. Considering this,
the university had to cancel her room allotment. Ms. X filed a WP under Art. 32 before
the SC challenging the constitutional validity of the aforesaid order, contending that it
was violative under Art. 14. Furthermore, she seeks to assert that the fundamental right
against discrimination on the basis of sex inscribed in Art. 15(1) in the Constitution
includes within its ambit the right against discrimination on the basis of sexual
orientation. On this ground she has assailed the validity of the universitys order as also
being violative of Art. 15(1).

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MEMORIAL for THE PETITIONER
STATEMENT of ISSUES

S TATEMENT OF I SSUES
WRIT PETITION-47

[ISSUE I]
WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE?
[ISSUE II]
WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14 OF THE CONSTITUTION OF MALP
HAVE BEEN VIOLATED IN THE INSTANT CASE?
[ISSUE III]
WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 25 AND ARTICLE 29(2) OF THE
CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?

WRIT PETITION- 23

[ISSUE I]
WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE?
[ISSUE II]
WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 14 OF THE CONSTITUTION OF MALP
HAVE BEEN VIOLATED IN THE INSTANT CASE?
[ISSUE III]
WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 15 OF THE CONSTITUTION OF MALP
HAVE BEEN VIOLATED IN THE INSTANT CASE?
[ISSUEIII]
WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 21 OF THE CONSTITUTION OF MALP
HAVE BEEN VIOLATED IN THE INSTANT CASE?

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MEMORIAL for THE PETITIONER
SUMMARY of ARGUMENTS

S UMMARY OF A RGUMENTS
WRIT PETITION - 47

[ISSUE1] WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE?


The petitioner has the locus standi in the present case and all the requirements of instituting
public interest litigation have been fulfilled in the present case. The circular issued by MEB
can be challenged under Article 32. The violation of Fundamental Rights which are the basic
structure of The Constitution also makes this Court competent to decide the question.
[ISSUE II] WHETHER

THE

FUNDAMENTAL RIGHTS

UNDER

ARTICLE 14

OF THE

CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?


The rights under Article 14 of the Malp Constitution has been violated in the instant case. The
circular issued by MEB is infected with the vice of arbitrariness and can be challenged in the
court of law for the violation of Article 14 of the Constitution of India. MEB has failed to apply
the principle of reasonableness and any failure to this regard leads to a violation of Article 14.
[ISSUE III] WHETHER THE FUNDAMENTAL RIGHTS UNDER ARTICLE 25 AND ARTICLE 29(2)
OF THE CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?

The circular issued by the Medical Education Board of Malp is in violation of rights of the
Palshian female candidates, which are guaranteed under Article 25 and Article 29 of the
Constitution of Malp. The exercise of this right shall not affect the public order, morality or
health, therefore the State has no competency to make laws regulating such practice.

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MEMORIAL for THE PETITIONER
SUMMARY of ARGUMENTS
WRIT PETITION-23

[ISSUEI] WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE PRESENT CASE?


In the present case, there have been gross violations of fundamental rights viz. Article 14, 15
& 21 of Constitution of Malp. The Honble Supreme Court of Malp has the power to entertain
proceedings for the enforcement of fundamental rights. A challenge under Article 32 extends
not only to the validity of a law but also to an executive order or action with or without the
authority of law.
[ISSUEII] WHETHER

THE

FUNDAMENTAL RIGHTS

UNDER

ARTICLE 14

OF

THE

CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?


The cancellation of Xs room is in violation of Article 14. The order to cancel the allotment of
the petitioner has been done on arbitrary and unreasonable grounds. The petitioner being a
lesbian contends that her sexual orientation is constitutionally protected and cancellation by
the authorities is a violation of Article 14 of the Malpian Constitution.
[ISSUEIII] WHETHER

THE

FUNDAMENTAL RIGHTS

UNDER

ARTICLE 15

OF THE

CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?


The allotment of the hostel room of the petitioner has been cancelled by the authorities on the
ground of her sexual orientation. The petitioner being a lesbian contends that the instances of
fundamental right against discrimination on the basis of sex in the Constitution of Malp also
include within its ambit such rights against discrimination on the basis of sexual orientation.
This cancellation by the authorities is a violation of Article 15.
[ISSUEIV] WHETHER

THE

FUNDAMENTAL RIGHTS

UNDER

ARTICLE 21

OF THE

CONSTITUTION OF MALP HAVE BEEN VIOLATED IN THE INSTANT CASE?


Article 21 of the Constitution of Malp is also violated. Right to Life can be deprived only by
procedure established by law and the law must be fair, reasonable and just. The impugned
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SUMMARY of ARGUMENTS
university order has taken away the right to privacy, life and liberty which is protected under
Article 21 and international Covenants to which India is party

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED

ARGUMENTS A DVANCED
WRIT PETITION - 47

I. THE WRIT PETITION IS MAINTABLE IN THE INSTANT CASE:


1. PETITIONER HAS LOCUS STANDI IN THE INSTANT CASE: It is humbly submitted that the apex
court in the S.P Gupta1 held that test for determining the standing in individual interest cannot be
strictly applied to public interest. The court has expanded the concept of Affected party in the
cases of public interest. All the requirements of instituting PIL have been filled in the instant case.
First, there is a violation of fundamental rights. Second, the petitioner represents the rights of the
public i.e. Palshtyian women. Third, the petitioner has come to this courts with clean hands. The
impugned circular issued by MEB wherein the candidates were prohibited from wearing headgear
like headscarves, burqa, habit etc.2 comes within the purview of Article 133. Therefore, the Honble
Supreme court is competent to decide the legality of the circular under Art. 32.

2. BASIC STRUCTURE OF THE CONSTITUTION HAS BEEN VIOLATED: It is submitted that Part III
of the Constitution which deals with Fundamental rights is regarded as the basic structure of the
Constitution4. The doctrine of basic structure not only applies against the amendments under the

S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87; M.C Mehta v. Union of India, (1987) 1 SCC 395
; Rural litigation and Entitlement Kendra v. State of Uttar Pradesh 1986 Supp. SCC 517.
2

13, Pg. 8, MOOT PROPOSITION, P.A INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016.

Art. 13 (3) of the Malp Constitution; Brig Guardian Singh Uban v. Union of India. 1997 AIHC 886 (DEL) ;
Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1 ; D.D Basu, Commentary on the Constitution of Malp,
Vol. 1, 2010 pg. 713-714.
4

I.R Colho v. State of Tamil Nadu, (1998) 7 SCC 550.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
exercise of constituent power5 but also against exercise of legislative6 and executive power7.
Therefore, the said circular is therefore within the ambit of application of basic structure.

3. ALTERNATIVE REMEDY NOT A BAR: Where there is a well-founded allegation that fundamental
right has been infringed, alternative remedy is no bar for entertaining writ petition and granting
relief8. The mere existence of an adequate alternative remedy cannot be per se be a good and
sufficient ground for throwing out a petition under Art. 329. Thus, the petitioner submits before the
Honble court that the writ petition is maintainable in the present case.

II. FUNDAMENTAL RIGHTS UNDER ARTICLE 14 HAVE BEEN VIOLATED IN THE


INSTANT CASE:
It is humbly submitted Art. 14 of the Malpian Constitution envisage equal protection or equal
treatment in similar circumstances10. Art. 14 is a basic structure.11 The requirement of the
validity of a law with reference to Art. 14 is that it should not be arbitrary and classification
should be reasonable12.
1. THE CONSTITUTIONAL REQUIREMENT OF NON-ARBITRARINESS: It is submitted that under
the expanded interpretation of Art. 14, substantive non-arbitrariness has been held to be a

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp.
SCC 1.
6

Waman Rao v. Union of India, (1981) 2 SCC 362.

S.R Bommai v. Union of India, (1994) 3 SCC 2 ; Rameshwar Prasad v. Union of India, (2006).

State of Bombay v. United Motors Ltd., AIR 1953 SC 252.

K.K Konchinni v. State of Madras, AIR 1959 SC 725.

10

Tinkushia Electric Supply Co. V. State Of Ass. , A.I.R. 1990 S.C. 123.

11

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.
12

Soma Chakravorthy V. C.B.I., (2007) 5 S.C.C. 403.

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ARGUMENTS ADVANCED
constitutional requirement under Art. 1413. Any administrative act, even though it may involve
policy;14 or that it involved an improper use15 of the statutory power; or that the power was
exercised by an unfair procedure;16 or that the action taken by the State or its instrumentality
is not conducive to the public interest.17
2. THE AUTHORITIES HAVE FAILED TO APPLY PRINCIPLE OF REASONABLENESS: It is submitted
that the authorities have acted without following the procedure leading to unequal treatment
violating Article 14.18 Arbitrariness is an antithesis of rule of law, equity, fair play and
justice.19The Indian courts have followed Wednesbury principles of reasonableness20. In the
instant case, the authorities have wrongly exercised discretion as they have failed to take into
consideration that issuance of such a circular would ultimately affect the fundamental rights of
a section of the society.
III. FUNDAMENTAL RIGHTS UNDER ARTICLE 25 AND ARTICLE 29(2) HAVE BEEN
VIOLATED IN THE INSTANT CASE:
1. RIGHT TO WEAR RELIGIOUS ATTIRE IS A FUNDAMENTAL RIGHT: It is submitted that Art. 25
secures to every person, subject to the restrictions, a freedom not only to entertain such
religious belief, as might be approved by his judgement and conscience, but also to exhibit his

13

Durga Das Basu's Commentary on the Constitution of India, 1361 (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
14

Workmen v. Meenakshi Mills, (1992) 3 SCC 336 (54).

15

Mahajan v. J.M.C., (1991) 3 SCC 91.

16

Aeltemesh v. Union of India, AIR 1988 SC 1768 ( 6).

17

Kasturi v. State of J&K, AIR 1980 SC 1992 SC 1992 ; Sachidanand v. State of W.B., AIR 1987 SC 1109.

18

Maneka Gandhi v. Union of India (1978) 1 SCC 248; Deepak Chand Sibal v. Punjab University, AIR 1989 SC
903.

19

Laksmi Precision Screws Ltd. v. Ram Bhagat, (2002) 6 SCC 552, 561 ( 59) : AIR 2002 SC 2914.

20

Counsel of Civil Services Union v. Minister for the Civil Services [1985] AC 374.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
belief in such outward acts as he thought proper and to propagate and disseminate his ideas for
the edification of others.21
Freedom of conscience means to acquire a knowledge or sense of moral judgement that
opposes the violation of previously recognised ethical principles which led to the feelings of
guilt if one violates such principles.22 If the belief is genuinely and conscientiously held it
attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.23
In the instant case, the Palshian female candidates genuinely and conscientiously subscribe to
the belief that wearing of burqa and full sleeve dresses in public is essential to the free
profession of their religion.24
Therefore, it becomes imperative to refer some verses in the Holy Quran, which mentioned
about headscarf or hijab. Among others, in Surah Al-Ahzab, Allah SWT said; "O Prophet! Tell
your wives and your daughters and the women of the believers to draw their cloaks (veils) all
over their bodies. That will be better, that they should be known (as a free respectable Muslim
women) so as not to be molested." 25
Indeed, it was clear from the above verses that the wearing of headscarf by Muslim women is
a religious obligation, simply like performing other obligations like performing five-time daily
prayers, fasting in Ramadan and so on.

21

Commissioner Hindu Religious Endowment v. Lakshmindra, AIR 1954 SC 282.

22

Syed Shah Muhammad Al Hussain v. Union of India, AIR 1999 Kant 112.

23

Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.

24

Pogakula Lekshmi Reddy v. Principal Secy to Govt of A.P, AIR 1997 AP 6.

25

Mr. Nisar Mohammad Bin Ahmad, "The Islamic and International Human Rights Law Perspectives of
Headscarf: the Case of Europe, 2 International Journal of Business and Social Science 161, 163 (2011), available
at http://ijbssnet.com/journals/Vol_2_No_16_September_2011/18.pdf, last seen 9/03/2016.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
A reflection of this freedom is also visible in the Explanation I of Article 25

26

. Sikhs being

religious minorities in India, some of the key ingredients which are essential to the profession
of the religion have been expressly protected by the Constitution. 27
2.

SECULARISM AND BASIC STRUCTURE:

Secularism is one of the basic features of the

Constitution28. While freedom of religion is guaranteed to all persons in India, from the point
of view of the State, the religion, faith or belief of a person is immaterial. To the State, all are
equal and are entitled to be treated equally. In matters of State, religion has no place. 29
3.

THE PRACTICE IS NOT BARRED BY CONSTITUTIONAL EXCEPTIONS UNDER ARTICLE

25:

'Public order' authorises the Legislature to impose restrictions on utterances which have a
tendency to cause public disorder or to excite religious.30 The expression 'in the interest of
public order' postulates a proximate relationship.31 Thus a limitation imposed in the interest of
public order to be a reasonable restriction, should be one which has approximate or reasonable
connection 32 or nexus with public order but not one far-fetched, hypothetical or problematical
or too remote in the chain of its relation with public order. The Kerala HC to the recent case of
Nadha Raheem v. CBSE 33 issued directions to the concerned invigilation centres to allow the

26

Article 25(2), Constitution of Malp.

27

Dr Subhash C. Kashyap, Constitutional Law of India, 741 (2008).

28

S.R Bommai v. Union of India, AIR 1994 SC 1918.

29

Ibid 434.

30

Virendra v. State of Punjab, AIR 1957 SC 896 (899) : 1958 SCR 308; Ramji Lal v. State of U.P, AIR 1957 SC
620 : 1957 SCR 860; Supdt v. Ram Manohar, AIR 1960 SC 633.
31

Supdt. v. Ram Manohar, AIR 1960 SCC 633: (1960) 2 SCR 821.

32

Arunachala Nadar, M.C.V.S v. State if Madras, AIR 1950 SC 300 (303) : 1959 Supp (1) SCR 2.

33

Nadha Raheem v. CBSE, Writ petition No. 21696 of 2015 (Kerala High Court, 21/07/2015).

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
students, who wished to be in there religious attire, to present themselves half an hour before
the commencement of examination.
It is to be contended that the Palshian female candidates are prepared to subject themselves to
any form of inspection which the MEB thinks fit, however a complete ban on wearing of
religious attire is inappropriate. Thus, it becomes imperative to assess that the restrictive law
is in fact 34, in the interest of public order, morality or health, but also restriction imposed by
the legislation is reasonable or has reasonable relation to the authorised purpose or is an
arbitrary 35 abridgement of the freedom guaranteed under the cloak of any exceptions
4.

THE IMPUGNED CIRCULAR VIOLATES INTERNATIONAL CONVENTION:

The circular is in

violation of several international conventions.36 Freedom of thought, conscience and religion


is considered a fundamental human right.37 As per the UN Declaration on the Elimination of
All Forms of Intolerance and of Discrimination Based on Religious Belief 1981 "religion or
belief, for anyone who professes either, is one of the fundamental elements of his life". 38 The
CEDAW, 1979 defines the term 'discrimination against woman' 39 and places obligation upon

34

Ramesh Thappar v. State of Madras, (1950) SCR 594, (602-3) : AIR 1950 SC 125.

35

Brushaber v. Union R.R, Co., 1 U.S 240 (1916, Supreme Court of the United States); Nebia v. N.Y., 291 U.S
502 (1934, Supreme Court of the United States).
36

Article 18, International Covenant on Civil and Political Rights, 1966; Article 18, Universal Declaration of
Human Rights, 1948; Article 9, European Convention for protection of Human Rights and Fundamental Freedoms
as amended by Protocol 11 of 2000; Article 12, American Convention on Human Rights, 1969; Article 30, Arab
Charter on Human Rights, 2003, Article 8, The African Charter on Human's and People's Rights, 1981,
Declaration on the Elimination of All Forms of Intolerence and of Discrimination based on Religion or belief.
37

Mr Nisar Mohammad Bin Ahmad, The Islamic and International Human Rights Law Perspectives of Headscarf:
the Case of Europe, 3 International Journal of Business and Social Science 161, 167 (2016).
38

4, Preamble, The Convention on the Elimination of All forms of Discrimination Against Women, 1979.

39

Article 1, The Convention on the Elimination of All forms of Discrimination Against Women, 1979.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
the state to condemn any such discrimination.40 The ECHR has consistently stated that the right
of freedom of religion is at the core of a democratic society.41
The ECHR has consistently stated that there must be a narrow construction of the limitations42
together with a broad interpretation of the freedoms guaranteed. The ECHR has stated that
discrimination on the basis of certain grounds, such as race and sex, is particularly serious and
has stated that "very weighty reasons" would have to be advanced before such treatment could
be regarded as compatible with the Convention.43
5. VIOLATION OF ARTICLE 29(2): Article 29 (2) is a counterpart of the equality clauses of Art.
1544. There should be no discrimination against any person on the ground of religion in the
matters of admission into any educational institution maintained or aided by the state45.
A student who has sufficient academic qualifications but is refused admission only on grounds
of religion, race, caste, language or any of them, then there is a clear breach of his fundamental
right under the present clause46. It is submitted that if on account of the dress code, the
petitioners are not able to even write the entrance exam for admission, the petitioners would
obviously not be entitled for admission.

40

Article 2, The Convention on the Elimination of All forms of Discrimination Against Women, 1979.

41

Kokkinakis v. Greece, Application No. 14307/88 (1993, European Court of Human Rights).

42

Article 9(2), European Convention of Human Rights.

43

Inze v. Austria, Application no 8695/79. (1987, European Convention of Human Rights).

44

Supdt. v. Ram Manohar, AIR 1960 SCC 633: (1960) 2 SCR 821.

45

Durga Das Basu's Commentary on the Constitution of India, 1678, (Justice Y.V Chandrachud, Justice S.S
Subbramani, Justice B.P Banerjee, 8th Ed. 2008).
46

Ibid.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
WRIT PETITION-23
I. THAT THE WRIT PETITION FILED BY MRS. X IS MAINTAINABLE.
It is humbly submitted that maintainability of writ petition for enforcement of fundamental
rights can be questioned only on the ground of laches47, delays and acquiescence,48 drafting of
petition in a dignified manner,49 malicious in nature,50 where disputed question of facts are
involved or question of law has been raised in the abstract51 or enforcement of private or
contractual rights are sought to be enforced52. In the instant case, none of the aforementioned
exception exists. The petition has been filed in time, question of facts are involved and
fundamental rights are sought to be enforced.
1.VIOLATION OF

FUNDAMENTAL RIGHTS:

Any person whose fundamental rights have been

infracted will be at liberty to move the Supreme Court53. Trans Palshtiya University is a state
aided university which performs public function is an other authority under Art. 1254. The

47

Rabindra Nath Bose and others v. Union of India and others, AIR 1970 SC 470.

48

Halsbury laws of England, (3rd Edn.) ; R. v. Diary Produce Quota Tribunal (1990) 2 AII ER 434: (1990) 2
WLR 1302.
49

M.K Mallick, Law and Practice, 234, (12th ed.), 2012.

50

S.A. Kini v. Union of India, AIR 1985 SC 893 : (1985) 3 SCR 754 : 1985 Supp. SCC 122( 4) ; Judicial
remedies in Public law by Clive Lewis, 2004 Edition, Chapter XI, 11.005 AT p. 392- 93 ; R.V. Customs and
Excise Commissioner ex parte Cooke and Stevenson, (1970) 1 AII ER 1068.
51

Indian legal and Economic forum v. U.O.I (1997) 10 SCC 728.

52

Satish Chandra v. Union of India, AIR 1953 SC 250.

53

Jagdish Swarup, Constitution of India, By Dr. L.M. Singhvi, (2 nd Ed.,2013).

54

Dr. Janet Jeyapaul v. SRM University & Ors., CIVIL APPEAL No. 14553, (2015, Kerala High Court); S.K.
Ghosh v. Utkal University, AIR 1952 Orissa 1; Jagdish Chandra v. University of Punjab, AIR 1952 Punjab 395
; see also G.A. Natesan, In re. AIR 1988 Madras 763; Sumendra Prasad v. University of Calcutta, AIR 1953
Calcutta 172 ; Jagannath Mahapatra v. Utkal University, (1979) 1 SLR 828 ; S.M. Sharma v. South Gujarat
University, (1982) GijLR 233 ; Sami Kumar v. State of Bihar, AIR 1982 Patna 66.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
fundamental rights of the Petitioner have been violated under Art. 14 and Art. 15 by the
impugned order of the said university and is the person aggrieved in the instant cas
2.ALTERNATIVE REMEDY NOT A BAR: The Honble Supreme court cannot refuse to entertain
applications seeking protection against infringement of such rights 55 and on the ground of the
existence of other adequate legal remedy, the court cannot decline a writ petition56.
II. THAT THE RIGHTS UNDER ARTICLE 14 HAVE BEEN VIOLATED:
It is humbly submitted before this Honble Court that the order of the university cancelling the
allotment of the Mrs Xs hostel room is in violation of Art. 14 of the Constitution. Art. 14 is a
basic structure.57 The requirement of the validity of a law with reference to Art. 14 is that it
should not be arbitrary and classification should be reasonable58. A law under Art. 13 can be
challenged under Art.14 on the grounds of being discriminatory or arbitrary59.
Reasonableness as recognised by common law60 and Indian law61 requires an action to be free
irrationality. For the purpose of Art. 1462, the expression arbitrarily means in an unreasonable
manner, as fixed or done capriciously or at pleasure.63In the instant case, the university had

55

Ramesh Thappar v. State of Madras, AIR 1950 SC 124 (126-127): 1950 SCR 594: 1950 SCJ 418: 1950 Cr LJ
1514; Kavalppara Kottarathil Kochunni v. State of Madras, AIR 1959 SC 725 (730): (1959) Supp. 2 SCR 316.
56

Harbansal Sehnia v. Indian oil Corporation Ltd. AIR 2003 SC 2120.

57

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.
58

59

Soma Chakravorthy V. C.B.I., (2007) 5 S.C.C. 403.


Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233.

60

Associated Provincial Picture House v. Wednesbury, (1948) KB 223; Council of Civil Services Union v.
Minister of Civil Services, (1984) 3 All ER 935 (HL).

61

Union of India v. G. Ganayutham, (1997) 7 SCC 463, 478-479; Coimbatore Distt. Central Coop. Bank v.
Employees Assn., (2007) 4 SCC 696.

62

Article 14, Constitution of Malp.

63

Sharma Transport v. Government of A.P., AIR 2002 SC 332: (2002) 2 SCC 188; State of TN v. K. Shyam
Kumar, (2011) 8 SCC 737: (2011) 4 CTC 874: (2011) 5 LW 97.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
failed to apply the principles of reasonableness in issuing the order for cancelling the allotment
of the room to Mrs X.
III. THE RIGHTS UNDER ARTICLE. 15 OF THE CONSTITUTION HAVE BEEN
VIOLATED:
The allotment of the hostel room of the petitioner has been cancelled by the authorities on the
ground of her sexual orientation.64 The petitioner being a lesbian contends that the instances of
fundamental right against discrimination on the basis of sex in the Constitution of Malp also
include within its ambit such rights against discrimination on the basis of sexual orientation.
This cancellation by the authorities is a violation of Art. 14 & Art.15
1.INDIAN

CONSTITUTION

AND

UNIVERSALISTIC

INTERPRETATION:

Universalistic

interpretation provides that all the constitutional guarantees are cut from the same cloth 65 and
courts should give meaning to liberties that transcend national boundaries66.
Since the promulgation of its Constitution in 1950, courts in India have frequently relied on
foreign precedents to interpret cases67. In Union of India v. The motion Pictures Association68,

64

19, 10, MOOT PROPOSITION, P.A INAMDAR INTERNATIONAL MOOT COURT COMPETITION, 2016.

65

Choudhry, Sujit, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional


Interpretation (1999). Indiana Law Journal, Vol. 74, No. 3, p. 819, 1999. Available at SSRN:
http://ssrn.com/abstract=1624070,last seen on 06/03/2016.
66

Fighting Words: Individuals, Communities, and Liberties of Speech, 12, (Kent Greenawalt, 1995).

67

Chief Justice K.G. Balakrishnan, The Role of Foreign Precedents in a Countrys Legal System, Lecture at
Northwestern University (Oct. 28, 2008) (transcript available on the Supreme Court of Indias website, at
http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_Northwestern_University
_lecture.pdf).
68

Union of India v. The Motion Pictures Associates, AIR 1999 SC 2334.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
the court referred Neat R. Wooby v. George Maynard69, and Turner Broadcasting System Inc
v. Federal Communications70 to examine the ambit of Art. 1971.
The Honble SC recognised the right of privacy as a fundamental right under Art. 21 by
relying on numerous decisions of the U.S. SC72. In another instance concerning freedom of the
press, the Court relied on the U.S. Supreme Courts decision in Kovacs v. Cooper73. While
subsequently upholding the death sentence, the Supreme Court of India relied on the U.S. cases
of Furman v .Georgia74, Arnold v. Georgia75, and Proffitt v. Florida76.
2.

THE TERM SEX IN ART.

ORIENTATION:

15(1)

CAN AND HAS BEEN INTERPRETED TO INCLUDE

SEXUAL

The founding fathers while drafting the constitution knew that eventually

there would arise a strong need for an anti-discrimination law in the country.77 This was the
basis for the inclusion of Art.15 (1) in the constitution. This article prohibits outright any form
of discrimination on sex.
In the Naz foundation case,78 it was clarified that the term sex in Art. 15(1) cannot be limited
to a simplistic interpretation as applying only to gender. The purpose underlying this
fundamental right against sexual discrimination is to prevent behaviour that treats people

69

Neat R. Wooby v. George Maynard, 430 US 705 (1977, Supreme Court of US).

70

Turner Broadcasting System Inc v. Federal Communications, 512 US 622 (1997, Supreme Court of US).

71

Art. 19, Constitution of Malp.

72

Kharak Singh v. State of Uttar Pradesh, (1963) AIR SC 1295; Munn v. Illinois, 94 U.S. 113 (1876, Supreme
Court of US); Wolf v. Colorado, 338 U.S. 25 (1949, Supreme Court of US); Bolling v. Sharpe, 347 U.S. 497
(1954, Supreme Court of US).
73

336 U.S. 77 (1949, Supreme Court of US).

74

408 U.S. 238 (1972, Supreme Court of US).

75

224 S.E.2d 386 (1976, Supreme Court of US).

76

428 U.S. 242 (1976, Supreme Court of US).

77

Samaraditya Pal, Indias Constitution, Origins and Evolution, 674, (Ed. 1, 2014).

78

Naz Foundation v. Govt. of NCT of Delhi 160 Delhi Law Times 277.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
differently for reason of not being in conformity with general/stereotypical/normal gender
roles79. It should also be noted that the Honble SC in Suresh koushals case did not question
the High Courts interpretation of Art. 1580.
3.

SEXUAL ORIENTATION AND INTERNATIONAL LAW:

In the international sphere, there are

umpteen numbers of authorities which prohibits the discrimination on the basis of sexual
orientation. The ECHR in Dudgeon v United Kingdom81 ruled against discrimination on
sexual orientation. In USA, the EEOC ruled that sexual orientation discrimination is already
illegal under Title VII of the Civil Rights Act82 of 1964. The EEOC claimed that the US SCs
decision in Price Waterhouse v. Hopkins83 had already prohibited discrimination on the basis
of sex stereotyping.
Up till 1999, there was no express support for rights based on the sexual orientation of
individuals. This changed when the EC expressly affirmed that sexual orientation as a
prohibited category of discrimination.84
In a landmark decision decided by the UNHRC85, it was claimed and ultimately upheld, that
rights under Art 26 which prohibited discrimination on the basis of sex86 included within their
interpretative, scope prohibition of discrimination on the basis of sexual orientation.

79

Ibid.

80

Suresh Kumar Koushal and another v. NAZ Foundation, Civil Appeal No. 10972 (2013, Supreme Court of
India)
81

Dudgeon v. United Kingdom, (1981) 4 EHRR 149.

82

Civil Rights Act, 1964 S. 703 (United States).

83

Price Waterhouse v. Hopkins 490 U.S. 228 (1989, Supreme Court of US).

84

Salgueiro Da Silva Mouta v. Portugal, Application No. 33290/96.

85

Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992,31/03/1994).

86

International Covenant on Civil and Political Rights,1966.

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
Thus it is clear from the abovementioned authorities, that discrimination on the basis of sexual
orientation has been prohibited all around the world.

IV.THAT RIGHTS UNDER ARTICLE 21 HAVE VIOLATED IN THE INSTANT CASE:


This right, guaranteed under Art. 21 has been interpreted by the Indian judiciary87 and includes
within its ambit the right to live with dignity, privacy and liberty. 88The expression "dignity of
the individual" finds specific mention in the Preamble to the Constitution of India itself and is
built into our constitutional culture itself.89
1. RIGHT TO PRIVACY: Right to privacy is a right to life under Art. 21.90 The right to private
life is protected by many international human rights instruments91. The right to private life is a
broad umbrella92 covering inter alia the determination and development of ones own
personality, personal and social identity93 and inter-personal relationship.94

87

Maneka Gandhi v. Union of India, (1978) 1 SCC 248; M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC
544; Hussainara Khatoon and Ors. v. Home Secretary State of Bihar, (1980) 1 SCC 81; Sunil Batra v. Delhi Admn.
(1978) 4 SCC 494; Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526; Francis Coralie Mullin v.
Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608.
88

Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608.

89

Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526

90

Peoples Union for Civil liberties (PUCL) v. Union of India, AIR 1997 SC 568.

91

Article 12, UDHR, 1948; Article 5, Declaration on the Human Rights of Individuals who are not Nationals of
the country in which they live, 1985; Principle 14, United Nations principles for Older persons, 1991; Article VI,
American Declaration on the rights and duties of man, 1948; Article 7, Charter of Fundamental rights of the
European Union, 2001; Article 18.b, The Cairo declaration on Human rights in Islam, 1990.
92

Sexual orientation, Gender identity and International Human rights Law, 47, Practitioners Guide No. 4,
International Commission of Jurists.
93

Niemitz v. Germany, Application No. 13710/88, 29,(1992, European Court of Human Rights).

94

A.R Coeriel and M.A.R Aurik v. The Netherlands, Communication No. 453/ 1991, 10,(1991,Human Rights
Committee).

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
1.1

SEXUAL ORIENTATION AND RIGHT TO PRIVACY:

Sexual orientation is an essentially private

manifestation of human personality.95 The UN HRC in Toonen v. Australia ruled that as per
Article 1796, it is undisputed that adult consensual sexual activity is private is covered by the
concept of privacy.97
It would be senseless if sexual self-determination were to remain outside the limits of the right
to personality.98 The SA Constitutional court has observed that the expression to our sexuality
is at the core of this area of private intimacy.99 The IAC has mentioned that Art. 11100 includes
right to determine ones identity, personality and define ones personal relationship.101The
ECHR is the most developed human rights body on the issue of sexual orientation vis--vis of
the right to privacy102 and repeatedly reaffirmed that there can be no doubt that sexual
orientation and activity concern an intimate aspect of private life.103

95

Smith and Grady v. the United Kingdom, Application No. 33985/96 and 33986/96, 127(1999, European
Courts of Human Rights).
96

Supra 8.

97

Nicholas Toonen v. Australia, Communication No. 488/1992, 10.2 (1994, United Nations Human Rights
Committee).
98

Judgement No. C-098/96 OF 7/03/ 1996. Available at /www.unilibrebaq.edu.co/html/C-098-96.htm, last seen


on 04/05/2016, last seen on 13/03/2016.
99

National Coalition of Gay & Lesbian Equality and Another v. Minister of Justice and others, Case CCT 11/98,
4,( 1988, Constitutional Court of South Africa).
100

Article 11, American Convention on Human Rights. 1969.

101

Report No. 4/01 of 19/01/2001, case 11.625, Maria Eugenia Morales de Sierra, 46, (2001, Supreme Court of
justice, Guatemala).
102

Dudgeon v. the United Kingdom, Application no. 7525/76(1981, ECHR); Norris v. Ireland, Application no.
10581/83(1988, ECHR); Modinos v. Cyprus, Application No. 15070/89(1993, ECHR); S.L. v. Austria,
Application No. 45330/99(2003, ECHR).
103

Laskey, Jaggard and Brown v. United Kingdom, Application No. 1627/93, 21826/93 and 21974/93, 36(1997,
ECHR).

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MEMORIAL for THE PETITIONER
ARGUMENTS ADVANCED
2. RIGHT TO LIBERTY: It is submitted that right to liberty is a fundamental right under Art. 21.
International law recognises and protects the right to liberty.104
2.1 SEXUAL ORIENTATION AND LIBERTY: It is humbly submitted that frequently, LGBT persons
are deprived of their liberty solely on the grounds of their sexual orientation.105
3. RIGHT TO LIFE : The word life assured in Art. 21 doesnt connote mere animal existence
through life. The right to not be arbitrarily deprived of life is a universal right protected by
international instruments106 and its exercise is essential for all other human rights.
3.1 SEXUAL ORIENTATION AND RIGHT TO LIFE: It is axiomatic that a state should not deprive a
person of life based on sexual orientation.107 The imposition of punishments committing a third
homosexual act or for reasons of sexual orientation identity of the victim are a flagrant violation
of the right to life.108 The UN General Assembly has repeatedly reaffirmed all the obligation
of the states to investigate promptly and thoroughly all cases committed for any discriminatory
reason, including sexual orientation.109

104

William Eduardo Delgado Paez v. Colombia, Communication No. 195/1985, (1985, Human Rights
Committee). See also Article 3, Universal Declaration of Human Rights, 1948.
105

Sexual orientation, Gender identity and International Human rights Law, Practitioners Guide No. 4, 75,
International Commission of jurists.
106

Article 3, UDHR, 1948; Article 6, ICCPR,1976; Article 9, International Convention on the Protection of the
Rights of all Migrant workers and Members of their families,1990; Article 6, Convention on the Rights of the
Child,1989; Article 7, United Nations Declaration on the Rights of Indigenous Peoples, 2007; Article 4, African
Charter on Human Rights and Peoples Rights, 1981; Article 5, African Charter on the Rights and Welfare of the
Child, 1999; Article 1, American Declaration on the Rights and Duty of the Man,1948; Article 4, American
Convention on Human Rights,1969; Article 5, Arab Charter on Human Rights,1994; Article 2, European
Convention on Human Rights, 1950; Article 2, Charter of fundamental rights of the European Union,2000.
107

Sexual orientation, Gender identity and International Human rights Law, 94, Practitioners Guide No. 4,
International Commission of Jurists.
UN General Assembly, Resolutions on Extrajudicial, summary or arbitrary executions No. 61/173 of
20/12/2006, http://www.ghrd.org/fileadmin/user_upload/LGBT_Report_2015.pdf, last seen on 06/03/2016.
108

109

General Assembly, Resolution 57/214, Extrajudicial, summary or arbitrary executions, 18/12/2002,


http://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf, last seen on 06/03/2016.

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MEMORIAL for THE PETITIONER
PRAYER

PRAYER

WRIT PETITION-47
In the light of facts stated, issues raised, arguments advanced and authorities cited, the
petitioner most humbly and respectfully pray and request the Honourable court:

1) TO ISSUE THE WRIT OF MANDAMUS.

2) TO STRIKE DOWN THE CIRCULAR PASSED BY THE MEDICAL EDUCATION BOARD.

3) TO GRANT ANY OTHER RELIEF WHICH THE HONBLE COURT MAY DEEM THINK FIT IN THE
EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted and for such act of kindness the Petitioner shall be duty
bound as ever pray.

Sd/(COUNSEL FOR PETITIONER)

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MEMORIAL for THE PETITIONER
PRAYER

WRIT PETITION-23
In the light of facts stated, issues raised, arguments advanced and authorities cited, the
petitioner most humbly and respectfully pray and request the Honble court:

1) TO ISSUE THE WRIT OF MANDAMUS.

2) TO STRIKE DOWN THE ORDER ISSUED BY THE TRANS-PALSHTIYA UNIVERSITY.

3) TO GRANT ANY OTHER RELIEF WHICH THE HONBLE COURT MAY DEEM THINK FIT IN THE
EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted and for such act of kindness the Petitioner shall be duty
bound as ever pray.

Sd/(COUNSEL FOR PETITIONER)

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