Memorial for the Respondents

TEAM CODE- C35

1ST P.A. INAMDAR INTERNATIONAL MOOT COURT

COMPETITION, 2016
BEFORE THE HONBLE SUPREME COURT OF MALP
U/ART. 32 OF THE CONSTITUTION OF MALP
IN THE MATTER OF
MS. X
PETITIONER
V.
TRANS PALSHIAN UNIVERSITY AND ORS.
RESPONDENT
WRIT PETITION CIVIL NO. 23/2016
AND

YOUNG PALSHTIYA WOMEN ORGANISATION

PETITIONER
V.
UNION OF MALP AND ORS.
RESPONDENT
WRIT PETITION CIVIL NO. 47/2016

MEMORANDUM ON BEHALF OF THE RESPONDENTS

Memorial for the Respondents

TABLE OF CONTENTS
S.NO
1.
2.

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

PAGE
NO.

HEADING
TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATUTES

BOOKS REFERRED

DICTIONARIES

WEBSITES

CASE LAWS

4
4,5

5,6,7

LIST OF ABBREVIATIONS

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

10,11

ISSUES RAISED

12

SUMMARY OF ARGUMENTS

13,14

ARGUMENTS ADVANCED
W.P. (PIL) NO. 47/2016.
15,16
I.

WHETHER THE PIL FILED BY YMWO

THE CONSTITUTION OF MALP?
A. No locus standi of YMWO
B. No violation of Fundamental Rights

MAINTAINABLE U/A

II. WHETHER THE RULING BY MEB PERTAINING

CONSTITUTIONALLY VALID OR NOT?
A.
A. No violation of Fundamental Rights
No violation of Art.14
No violation of Art.15
No violation of Art.25
B.
C.
2

TO

32

OF

DRESS CODE

17-22

Memorial for the Respondents

W.P. (CIVIL) NO. 23/2016

23-25
III.

IV.
D.

9.

WHETHER THE PETITION FILED BY MS. X MAINTAINABLE U/A 32

OF THE CONSTITUTION OF MALP?
A. Respondent is not State u/a 12
B. Petitioner has no locus standi to file the petition

WHETHER THE ORDER OF THE TRANS PALSHIYAN UNIVERSITY

CONSTITUTIONALLY VALID OR NOT?
A. No violation of Fundamental Rights
No violation of Art.14
No violation of Art.15
No violation of Art.29

THE PRAYER

26-29

30

Memorial for the Respondents

INDEX OF AUTHORITIES

STATUTORY COMPILATIONS:
1. The Constitution Of India,1950

BOOKS REFERRED:
1.Arvind P. Datar, Commentary on the Constitution of India; India: Lexis Nexis (2nd edition
2007).
2. Durga Das Basu, Commentary on the Constitution of India; Nagpur: Wadhwa and Company
(8th ed. 2007).
3. H.K Saharay, The Constitution of India-An Analytical Approach: Eastern Law House (4th
edition 2012)
4. H.M. Seervai, Constitutional law of India, Bombay: N.M. Tripathi Private Ltd. (3rd ed. 1983).
5. J.N. Pandey, Constitutional Law of India, Allahabad: Central Law Agency (42nd edition
2005)
6. M.P Jain, Indian Constitutional Law; Nagpur: Wadhwa and Company (5th edition 2003)
7. M.P. Singh, V.N. Shuklas Constitution of India (11th ed. 2008).

8. V.G. Ramchandran, Law of Writs, Lukhnow : Eastern Book Company 6th edition

9. P.M Bakshi, Public Interest Litigation, New Delhi: Ashoka Law House (3rd edition 2012)

10.P.K Majumdar, R.P Kataria, Commentary on the Constitution of India; New Delhi: Orient
Publishing Co. (10th edition 2009)
11.Narender Kumar, Constitutional Law of India, Faridabad: Allahabad Law Agency (7th edition
2008)

Memorial for the Respondents

12. P.M Bakshi, The Constitution of India; Universal Law Publishing Co. (12th edition 2013)

DICTIONARIES:
1. Strouds Judicial Dictionary, Volume 4 (IV Edition)
2. Advanced Law Lexicon, 4th Edition
3. Shorter Oxford Dictionary (3rd Ed.)

WEBSITES:
1. www.manupatra.com
2. www.judis.nic.in
3. www.supremecourtcaselaw.com
4. www.scconline.com
5. www.lawstudentshelpline.com

ARTICLES REFERRED:
1. United Nations Human Rights, Minority Rights: International Standards and Guidance For
Implementation, United nations New York and Geneva 2010
2. Prof. Jeffrey Jowell , Beyond the Rule of Law: Towards Constitutional Judicial Review,
21l (2014).

1. CASES REFERRED:
2. A.N. Bhati v. St. of Gujarat AIR 2005 SC 2115 ................................................................ 21
3. American Tracking Assn. v. United States,97 L Ed 337:344 US 298 (1952). .................. 11
4. Aruna Roy v. U.O.I ,AIR2002 SC 3176............................................................................ 10

Memorial for the Respondents

5. Aruna Roy v. Union of India,AIR 2002SC 3176 ............................................................... 16

6. Ashutosh Gupta v. St. of Rajasthan (2002) 4 SCC 34 ....................................................... 19
7. Bal Patil v. Union of India,AIR 2005 SC 3172 ................................................................. 10
8. BALCO Employees Union v. Union of India(2002) 2 SCC 333 ........................................ 8
9. Calcutta Gas Co. Ltd v. State of West Bengal,[1962] 3 SCR: [1962] AIR 1044(SC) ...... 18
10. Chander Mohan Khanna v. NCERT AIR 1992 para 3...................................................... 17
11. Charan Lal Singh v. Gaini Zail Singh, [1984] 1 SCC 390 [1984] AIR 309(SC ............... 18
12. Charanjeetlal chaudhary vs Union of India AIR 1951 SC 41 .......................................... 19
13. Charanjitlalchowdhury v. Union of India AIR 1951 SC 41 .............................................. 21
14. Commisioner of police v. acharya j avadhutta AIR 2004 SC 2984 .................................. 15
15. Commissioner,H.R.E. v. L.T. Swamiar,AIR 1954 SC 282 ................................................ 15
16. Commr. Of Hindu Religious Endowments v. Sri Lakshmindra..Mutt AIR 1954 SC 282 .. 14
17. Commr. Of Police v. Acharya Jagadeshwarananda AIR 2004 SC 2984 .......................... 15
18. D.S Nakara v. U.O.I (1983) 1 SCC 305 :AIR 1983 SC 130 ............................................. 10
19. Daryao & Ors. Vs. State of U.P. & Ors. AIR 1961 SC 1457 .............................................. 9
20. E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555 ................................................... 20
21. E.P.Royappa V. State of Tamil NaduAIR 1974 SC 555 .................................................... 11
22. I.R. Coelho v. state of TN, AIR 2007 SC 861 .................................................................... 19
23. I.R.Coehlo v. State of Tamil Nadu, AIR 2007 SC 861 ...................................................... 11
24. in M. Ismail Faruqui v. Union Of India,AIR 1995 SC 605 ............................................... 10
25. Janata Dal vs. H.S Chowdhary [1992] 4 SCC 305 ......................................................... 8,9
26. Kalyaneshwari v. Union of India (2011) 3 SCC 287 .......................................................... 9
27. Kazi Lhendup Dorji v. CBP [1992] 4 SCC 305 ................................................................. 8
28. Kedar Nath Bajoria v. Stat of W.B., AIR 1953 Sc 404 ...................................................... 20
29. Khoday Distilleries Ltd. V. State of Karnataka (1996) 10 SCC 304 ................................ 11
30. Lily Thomas v. Union of India AIR 2000 SC 1650 ........................................................... 14
31. M. Ismail Faruqui v. Union Of India,AIR 1995 SC 605 ................................................... 10
32. M. nagaraj v suoi (2006) 8 SCC 212 ................................................................................ 21
33. M.B. Namani v. Dy. Custodian of Evacuee Property, AIR 1951 Mad 930 ....................... 13
34. Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, AIR 1990, SCC 30 ... 12

Memorial for the Respondents

35. Meor Antiqulrahman v. Fatimah Binti Sihi [2006] 4 MLJ 605,610-11 (Federal
Court,Putrajaya) ............................................................................................................... 15
36. Mohd. Aslam v. Union of India,(2003) 4 SCC 1 ................................................................. 8
37. Mukherjee J, in Anwar Ali Sarkar vs The State Of West Bengal AIR 1952 Cal 150 ........ 21
38. Municipal Committee Patiala v. Model town Resident Association, AIR 2007 sc 2844 .. 19
39. Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001 ................................... 22
40. Panama Refining Co. v. Ryan 79 L Ed 446:293 US 388 (1934) ................................ 11, 22
41. Pannalal Binjraj v. UOI AIR 1957 SC 397, 408 : 1957 SCR 233 .................................... 21
42. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology & Ors.(2002) 5 SCC 111
........................................................................................................................................... 17
43. Provincial Picture House v. Wednesbury Corporation (1947) 2 All ER 640 ................... 21
44. R.K. Dalmia v. Justice Tendulkar, AIR 1958 SC 538 ....................................................... 12
45. Ram Krishna Dalmia v Justice Tendolkar (AIR 1958 SC 538 : 1959 SCR 279) .............. 21
46. Ram Krishna Dalmia v Justice Tendolkar (AIR 1958 SC 538 : 1959 SCR 279)> ........... 20
47. S.P.Gupta v. Union of India 1981 Supp SCC 214 .............................................................. 8
48. S.P.Gupta v. Union of India 1981 Supp SCC 220 .............................................................. 8
49. S.R.Bommai v. Union of India AIR 1994 SC 1918............................................................ 10
50. Samatha v. State of A.P. (1997) 8 SCC 191 (para 79)...................................................... 10
51. Sri Adi Visheshwara etc. v. State of U.P. (1997) 4 SCC 606 ............................................ 14
52. St. Xaviers College v state of Gujarat (1974) 1 SCC 717; AIR 1974 SC 1389 ............... 17
53. State of A.P. v. N.R. Reddi AIR 2001 Sc 3616 .................................................................. 20
54. State of Bihar v. Bihar State plus-2 Lecture Association, AIR 2007 SC 1948.................. 19
55. State of Bombay v. Narasu Appa, AIR 1952 Bombay 84 .................................................. 14
56. State of Karnataka v. Appa Balu Ingale 1995 Supp (4) SCC 469 (per K. Ramaswamy J.) 9
57. State of UP v. Johrimal AIR 2004 SC 3800 ...................................................................... 21
58. T.M.A Pai Foundation v. State of Karnataka, AIR 2003 SC 355 ..................................... 17
59. Zee Telefilms Ltd. v. Union of India,(2005), Also see Common Cause v. UOI (1996) 6
SCC 667; AIR 1999 SC 2979 ............................................................................................ 16

Memorial for the Respondents

TABLE OF ABBREVIATIONS

Anr.

Another

Art.

Article

A.I.R.

All India Reporter

C.A.D.

Constitutional Assembly Debates

Cal.

Calcutta High Court

Ed.

Edition

Govt.

Government

Honble

Honourable

LGBT

Lesbian,Gay,Bisexual,Transgenger

Ltd.

Limited

MEB

Medical Education Board

NGO

Non Governmental Organisation

Ors.

Others

P.I.L

Public Interest Litigation

S.C.

Supreme Court

S.C.C.

Supreme Court Cases

S.C.R.

Supreme Court Reporter

St.

State

U/A

Under Article

U.O.I

Union of India

Vs/V.

Versus

W.B.

West Bengal

W.P.

Writ Petition

YMWO

Young Palshtiya Women Organisation

Memorial for the Respondents

STATEMENT OF JURISDICTION

The petitioners have approached the Honble Supreme Court of Malp by the virtue of Article 32
of the Constitution of Malp which reads as follows
Article 32 (1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
A Public Interest Litigation has been filed under W.P. (PIL) NO. 47/2016.

Memorial for the Respondents

STATEMENT OF FACTS
W.P. (PIL) NO. 47/2016
1. Political Setup
Malp is a developing country consisting of four states. As per the latest census, the followers
of Shran constitute 62 percent of the population while Palshtiyas constitute about 21
percent of the population and the remaining people are followers of Kritya, Shana and
Vanah. The constitution of Malp provides for a socialism and secularism based framework.
2. Circular of Medical Education Board
In 2015, after a large scale cheating discovered in Pre-medical examination the Supreme
Court setting aside the entire examination ordered a fresh examination. The Medical
Education Board central body responsible for medical education issued a circular stating the
guidelines for conduct for the re-examination prohibiting the candidates from wearing any
headgear like caps, headscarves, burqa, habit etc and full sleeve clothes.
3. Petition by Young Palshtiya Women Organisation
A registered NGO named Young Palshtiya Women Organisation filed a PIL before the SC
against the said regulation of MEB. The president of the organisation said: It is our right to
wear the headscarf and full-sleeve dress as it forms part of our religion to wear it in public. It
would be against my faith and religious belief to sit for the test in the said dress code. The
authorities are trying to impose their orders on Palshtiyan women only
4. Status of Petition
The petition was initially heard by a bench of three judges of SC but was later transferred to
the Constitutional Bench as may involve substantial interpretation of the constitution.

10

Memorial for the Respondents

W.P. (CIVIL) NO. 23/2016

1. Social Setup
The modern times in Malp has seen social-inclusion of the weaker & stigmatised sections of
the society. LGBT community is now visible as an active part of the society, enjoying an
improved status therein.
2. Order of Trans Palshian University
Ms. X, follower of shran took admission in the Trans Palshian University a state-aided
religious minority institution. However soon after her admission, the University authorities
cancelled the previously allotted hostel room to her, on the ground that she was a lesbian and
that fellow women candidates had objected to her staying with them in the same hostel.
3. Petition by Ms. X
Ms. X filed a writ petition under Article 32 of the Constitution before the S.C. of Malp,
challenging the validity of the order. She contends that the order is violative of Arti 14, being
arbitrary and Art.15(1) as the fundamental right against discrimination on the basis of sex
also include discrimination on the basis of sexual orientation. The respondent Trans
Palshian University has claimed that the term sex in article 15(1) of the Constitution
cannot be interpreted to include sexual orientation. It has also contended that it is a
religious minority institution and hence has the right to independently administer the
institution on its own.
4. Status of Petition
Hearing the petition, a division bench of the SC issued notice to the University for its reply to
petition and the matter has been referred to five judge constitutional bench art. 145(1)

11

Memorial for the Respondents

ISSUES RAISED
UNDER W.P. (PIL) NO. 47/2016
ISSUE-I
Whether the PIL filed by Young Palshtiya Women Organisation u/a 32 of the
Constitution of Malp maintainable or not?

ISSUE- II
Whether the rule pertaining to dress code in the circular issued by Medical Education Board
constitutionally valid or not?

UNDER W.P. (CIVIL) NO. 23/2016

ISSUE- III
Whether the petition filed by Ms. X u/a 32 of the Constitution of Malp maintainable or not?

ISSUE-IV
Whether the order of Trans Palshian University constitutionally valid or not ?

12

Memorial for the Respondents

SUMMARY OF ARGUMENTS

W.P. (PIL) NO. 47/2016

I. Whether the PIL filed by Young Palshtiya Women Organisation u/a 32 of the
Constitution of Malp maintainable or not?
The Public Interest Litigation filed by YWMO under Art. 32 of Constitution of Malp is not
maintainable .
YWMO has no locus standi to file PIL u/a 32 of the Constitution of Malp.
Also, theres no violation of Fundamental Rights.

II. Whether the rule pertaining to dress code in the circular issued by Medical
Education Board constitutionally valid or not?
The Constitution of Malp provides for a socialism based framework for the administration
of the country and is established to be a secular state. The administration is bound to work in
light of these guiding principles.
Moreover, theres no violation of Fundamental Rights as the ruling is not violative of
Art.14, Art. 15, Art. 25 (inter alia).
The ruling in the circular is thus, constitutionally valid.

13

Memorial for the Respondents

W.P. (CIVIL) NO. 23/2016

III. Whether the petition filed by Ms. X

u/a 32 of the Constitution of Malp

maintainable or not?
The petition filed by Ms. X under Art. 32 of Constitution of Malp is not maintainable.
The respondant is not state u/a 12.
Also, the petitioner does not have locus standi to file the petition.

IV. Whether the order of Trans Palshiyan University constitutionally valid or not ?
Theres no violation of Fundamental Rights in the order passed by the University. The
order is not violative of Art.14, Art. 15(1), Art. 29(2) (inter alia).
The order passed by the University is thus, constitutionally valid.

14

Memorial for the Respondents

THE ARGUMENTS ADVANCED

W.P. (PIL) NO. 47/2016

I.

WHETHER THE PETITION FILED

BY

YOUNG PALSHTIYA WOMEN ORAGANISATION

UNDER ARTICLE 32 MAINTAINABLE OR NOT?

1. It is humbly submitted before the Honble Court that the Public Interest Litigation filed by

YWMO under Art. 32 of Constitution of Malp is not maintainable for the following reasons :
A.)NO LOUS STANDI T O FILE PUBLIC INTERST LITIGATION
2. Though the rule of locus Standi has been liberalized, it does not mean that itis without any
limitation.1Sufficient interest would have to be determined by the court in each individual
case.2One such situation where the petitioner shall be deemed not having Sufficient interest
would be where though the administrative action or inaction causes public injury and also
specific injury to an individual or a group , yet the latter does not want to maintain any action
for reasons not actuated by poverty, illiteracy or fear. This would be something like thrusting
a relief on someone who does not want it.3No doubt a person who is personally aggrieved by
such decisions can himself come before the court, but a PIL at the behest of stranger cannot

S.P.Gupta v. Union of India 1981 Supp SCC 220.See Janata Dal vs. H.S Chowdhary [1992] 4 SCC 305and Kazi

Lhendup Dorji v. CBP [1992] 4 SCC 305

2

S.P.Gupta v. Union of India 1981 Supp SCC 214

Ibid,SCC 264

15

Memorial for the Respondents

be entertained.Every matter of public interest or curiosity cannot be a subject of PIL, because

courts are no expected to conduct the administration of the country.4
3. A court must also evaluate the necessity of filing a PIL. 5The jurisdiction of Supreme Court
cannot be invoked lightly. If the amount involved in the appeal is meagre, the petition may
not be admitted.6 The court would not allow itself to be activated for oblique considerations.7
B.)NO VIOLATION OF FUNDAMENTAL RIGHTS
4. The citizens are entitled to appropriate relief under the provisions of Art. 32 of the
Constitution provided it is shown to the satisfaction of the Court that the Fundamental Right
of the petitioner had been violated. 8
5. Where no Fundamental Right of a person is violated,court can decline jurisdiction.It is for
this reason that in Federation of Bar Assn. v. Union of India,9the court declined relief in a
public interest litigation petition for the establishment of High Court Benches at other places
in Karnataka.

BALCO Employees Union v. Union of India(2002) 2 SCC 333.See also Mohd. Aslam v. Union of India,(2003) 4

SCC 1
5

Kalyaneshwari v. Union of India (2011) 3 SCC 287

State of Karnataka v. Appa Balu Ingale 1995 Supp (4) SCC 469 (per K. Ramaswamy J.)

Janata Dal vs. H.S Chowdhary [1992] 4 SCC 305

Daryao & Ors. Vs. State of U.P. & Ors. AIR 1961 SC 1457

(2000) 6 SCC 715

16

Memorial for the Respondents

II. WHETHER THE RULE PERTAINING TO DRESS CODE IN THE CIRCULAR ISSUED BY MEDICAL
EDUCATION BOARD CONSTITUTIONALLY VALID OR NOT?
6. It is humbly submitted before the Honourable Court that the rule pertaining to dress code in
the circular issued by Medical Education Board is constitutionally valid for following
reasons:
7. The Constitution of Malp provides for a socialism based framework for the administration of the
country and is a secular country.

8. The principle aim of socialist state is to eliminate inequality in income and status and
standards of life.10 The word socialist used in the preamble when read with the goals in
Art.14,15,16,17,21,23,38,39,46 and all other cognate articles seek to reduce inequalities in
income and status and to provide equality of opportunity and facilities.11
9. Secularism means honoring all religions. The preamble and Articles 25,26,29,30,44,51A,
14,15,16, prevent the state from identifying or favoring any particular religion or religious
sect or denomination.12The concept of secularism was already implicit in Articles 25 to 30 of
the constitution.13It has been held to be one facet of the right to equality woven as central
golden thread in the fabric depicting the pattern of the scheme in our constitution.14
Secularism is a matter of conclusion to be drawn from various Articles conferring
Fundamental Rights. If the secular character is not be found in Part III ,it cannot be found
10

D.S Nakara v. U.O.I (1983) 1 SCC 305 :AIR 1983 SC 130

11

Samatha v. State of A.P. (1997) 8 SCC 191 (para 79)

12

S.R.Bommai v. Union of India AIR 1994 SC 1918.Five judge bench of SC held the same in M. Ismail Faruqui v.

Union Of India,AIR 1995 SC 605.See also Bal Patil v. Union of India,AIR 2005 SC 3172
13

Aruna Roy v. U.O.I ,AIR2002 SC 3176.See also Bal Patil v. Union of India,AIR 2005 SC 3172

14

M. Ismail Faruqui v. Union Of India,AIR 1995 SC 605

17

Memorial for the Respondents

anywhere else in the Constitution, because every Fundamental Right in Part III stands either
for a principle or a matter of detail.15
10. The Constitutional Validity of the ruling is henceforth proved in light of the submissions
made hereunder:
A.) NO VIOLATION OF ARTICLE 14
A.1)RULING IS FREE FROM ARBITRARINESS AND CONFORMS REASONABLENESS
11. Article 14 strikes at arbitrariness

16

and promotes reasonableness.The existence of particular

circumstances and conditions17 and reasonable grounds for exercising the judgement must be
considered for rendering constitutional validity to executive order.18
12. As per Wednesbury test of Reasonableness, the authority must act properly within law,
apply its mind to matters which it is bound to consider,and exclude all that is not relevant.
Over and above this authority must act in good faith.19
13. Also Proportionality Test as Professor Jowell describes involves a sophisticated four stage
process posing the following questions :-(1) Did the action pursue a legitimate aim?(2) Were
the means employed suitable to achieve that aim?(3) Could the aim have been achieved by a

15

16

I.R.Coehlo v. State of Tamil Nadu, AIR 2007 SC 861

th

Narender Kumar, Indian Constitutional Law , 117(7 edition 2008)

17

Panama Refining Co. v. Ryan 79 L Ed 446:293 US 388 (1934)

18

American Tracking Assn. v. United States,97 L Ed 337:344 US 298 (1952).See also, Manhattan General

Equipment Co. v. Commr.,80 L Ed. 528: 297 US 129 (1935)

19

See,Indian Rly. Construction Co. Ltd. V. Ajay Kumar,(2003) 4 SCC 579.See also Khoday Distilleries Ltd. V. State

of Karnataka (1996) 10 SCC 304.See also E.P.Royappa V. State of Tamil NaduAIR 1974 SC 555

18

Memorial for the Respondents

less restrictive alternative?(4) Is the derogation justified overall in the interests of a

democratic society?20
A.2)RULING UNDERTAKES REASONABLE C LASSIFICATION
14. Art. 14 forbid class legislation but it does not forbid reasonable classification. A
classification to be valid must satisfy following two conditions, namely: Intelligible
Differentia

2.Rational Relation21.

15. In the present case the ones that are grouped together are the students appearing for the pre
medical entrance examination.(Intelligible Differentia) And the object sought to be achieved
by the act of classification is to ensure fair conduct of examination ensuring absence of
cheating and admission of only meritorious students to medical institutions.(Rational
Relation)
16. De jure equality must ultimately find its raison detre in de facto equality. 22It is humbly
submitted that in order to ensure this the state was under an obligation to provide a level
playing field to the students and for this purpose it took an affirmative action on the basis of
non-discrimination principle. The ruling in question by MEB is thus is not violative of Art.14
B.) NO VIOLATION OF ARTICLE 15
17. The plain meaning of the prohibition in Art. 15 is that no person shall be treated
unfavourably by the state when compared with the persons of other religion, race etc. merely

20

Prof. Jeffrey Jowell , Beyond the Rule of Law: Towards Constitutional Judicial Review, 21l (2014).

21

R.K. Dalmia v. Justice Tendulkar, AIR 1958 SC 538

22

Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College, AIR 1990, SCC 30

19

Memorial for the Respondents

because he belongs to a particular religion etc.23Nevertheless, the circumstances that a large
majority of the citizens affected by a legislation happen to be members belonging to a
particular, will not necessarily imply that on that account, the enactment should be regarded
as discriminatory under Article 15(1).24
18. Any and all kinds of headgears are prohibited under the ruling. Also, the ruling applies to
men and women equally as it prohibit wearing of any headgear. Moreover, the rule is
applicable to all the students appearing for pre-medical examination uniformly and in totality
irrespective of the gender/sex they are and the religion they follow or any other ground
mentioned in Art.15(1).
19. It is humbly submitted that a deeper enquiry into the reasons behind enactment of the ruling
in question will lead the court into finding that the authority acted properly within law,
applied its mind to matters which it is bound to consider, and excluding all that was not
relevant25. Over and above, it acted bona fide. The discrimination felt by the palshtiyans is
mere illusionary and the ruling is constitutionally valid and also not violative of Art.15.
C.) NO VIOLATION OF ARTICLE 25
C.1) RIGHT UNDER ART 25 IS NOT AN ABSOLUTE RIGHT

20. Art. 25 gives to all persons the freedom of conscience and the right to freely profess, practice
and propagate religion. This right, however, is not absolute. Restrictions by the state on the

23

nd

Acharya Dr. Durga Das Basu, Indian Constitution Law, 96 (2 ed.,2007)

24

M.B. Namani v. Dy. Custodian of Evacuee Property, AIR 1951 Mad 930

25

Supra 19, at 13

20

Memorial for the Respondents

free exercise of religion are thus, permitted both under Art.25and 26 on grounds of public
order, morality and health.26
21. It is humbly submitted that religion is not a commodity to be exploited.27Every mundane and
human activity is not intended to be protected under the constitution in the garb of religion.
Art. 25 and 26 must be viewed with pragmatism.28If religious practices run counter to public
order, morality or health or a policy of social welfare upon which the State has embarked,
then the religious practices must give way before the good of the people of the State as a
whole.29,
C.2) WEARING OF HEADSCARF AND FULL-SLEEVED CLOTH NOT AN ESSENTIAL PRACTICE

22. It is humbly submitted that to determine whether Part or practice is essential to religion, the
test to find out is whether the nature of religion will be changed without that part or practice.
If the taking away of that part or practice could result in a fundamental change in the
character of that religion or in its behalf, only then such part could be treated as an essential
or integral part.30
23. A three step test in balancing religious freedoms against public goods like public order and
morality included:

26

Commr. Of Hindu Religious Endowments v. Sri Lakshmindra..Mutt AIR 1954 SC 282

27

Lily Thomas v. Union of India AIR 2000 SC 1650

28

Sri Adi Visheshwara etc. v. State of U.P. (1997) 4 SCC 606

29

30

State of Bombay v. Narasu Appa, AIR 1952 Bombay 84

Commr. Of Police v. Acharya Jagadeshwarananda AIR 2004 SC 2984

21

Memorial for the Respondents

a) Looking to see if religion was involved; b) Examining whether a practice was part of that
religion, and how important it was to the practice of the religion, and ;c) Considering all
the relevant circumstances.
24. In deciding whether a practice was integral, the court considered its importance such that if it
was compulsory greater weight be accorded to it. Also, that wajib (mandatory) as opposed to
sunnat (commendable) practices will be viewed more seriously.31
25. Any practice or part of religion that is alterable could not be a core of the religion, where, the
belief was based and religion was founded upon. It could only be treated as mere
embellishment to the non essential part or practice.32
26. The integral or essential part of the religion is primarily to be ascertained with reference to
the doctrines of that religion itself33. Palshtiyans in Malp can be well equated to a religious
minority named Muslims in India who are governed by holy book Quran, which orders only
modesty and does not mandate any kind of headscarf or full sleeved clothes. The really
important is your relationship with God and God knows what matters. The most important
shade of religion is Dharma (duty),duty towards the society and the soul.34

31

32

33

34

Meor Antiqulrahman v. Fatimah Binti Sihi [2006] 4 MLJ 605,610-11 (Federal Court,Putrajaya)
Commisioner of police v. acharya j avadhutta AIR 2004 SC 2984
Commissioner,H.R.E. v. L.T. Swamiar,AIR 1954 SC 282
Aruna Roy v. Union of India,AIR 2002SC 3176

22

Memorial for the Respondents

W.P. No (Civil) 23/ 2016

III.

WHETHER THE PETITION FILED BY MS. X

UNDER

ARTICLE 32 MAINTAINABLE OR

NOT?
27. It is humbly submitted that the petition filed by Ms. X is not maintainable as the respondent
is not state within meaning of Art. 1235 and petitioner does not have a locus standi to appear
before this Court.
A.) THE RESPONDENT IS NOT STATE U/A 12
28. The SC held that the pre requisite for invoking the enforcement of Art. 32 is that the violator
of the right should be a state first36 and merely because a non-governmental body exercises
some public duty, it would not suffice to make it state as the test of Public function is not
sufficient to hold an authority under Art. 12. The SC observed that since today, state is
distancing itself from commercial activities and concentrating on governance, there is no
need to further expand the scope of other authorities in Art. 12 by judicial interpretation at
least for the time being.37
29. Art. 12 should not be stretched so as to bring in every single body which has some nexus
with the government within state and must be tempered by a wise limitation because in the
modern concept of welfare state, independent institutions, corporations and agencies etc. are
generally subject to state control.38

35

Article 12 , The Constitution of India

36

Zee Telefilms Ltd. v. Union of India,(2005), Also see Common Cause v. UOI (1996) 6 SCC 667; AIR 1999 SC 2979

37

Ibid.

38

Chander Mohan Khanna v. NCERT AIR 1992 para 3

23

Memorial for the Respondents

30. A seven-Judge Bench of SC39 ruled that while deciding that whether an authority is falling
within definition of state under Art. 12, in each individual case would be depending on facts
that whether the body is financially, functionally and administratively dominated by or under
the control of the Government. Mere regulatory control would not be sufficient.
31. The management of the affairs of minority institutions has been held to be the free of external
control, so that the authorities, can mould the institution in accordance with their ideas of
how best the interest of the community and the institution will be served. The court
emphasized that the right to administer meant the right to conduct and manage the affairs
of the institution.40
32. In T.M.A Pai Foundation v. State of Karnataka,41 the eleven judge bench of the SC ruled that
the government aid cannot deprieve minority institution of its status and thus right of the
management of state aided minority institution would be free from governmental control and
can be regulated only to maintain standards of education. The right to regulate admission of
students to educational institution is an essential facet of their right. In case of All saints High
school v. Govt. of A.P.42,the court held that government can only adopt regulatory measures
in order to improve the educational standards so that they may not fall below the standard of
excellence.
33. It is humbly submitted that the University is not state within definition of Art.12 and thus not
amenable to writ jurisdiction under Art.32 as there is no deep and pervasive state control.

39

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. (2002) 5 SCC 111

40

St. Xaviers College v state of Gujarat (1974) 1 SCC 717; AIR 1974 SC 1389

41

AIR 2003 SC 355

42

(1980) 2 SCC 478: AIR 1980 SC 1042

24

Memorial for the Respondents

Even though the institution discharges duties akin to the state, violation of such duty will
only allow the citizens to file for a writ petition under Art. 226 or by ordinary course of law.
B.) THE PETITIONER DOES NOT HAVE LOCUS STANDI
34. Locus Standi means standing to sue which denote the existence of right of individual(s) to
have Court enter upon adjudication on an issue brought before that Court by proceedings
instituted by the individual. If the petitioner has no locus standi, he cannot be heard in a
Court of Law.43 Also, there must exit some subsisting legal and/or constitutional right which
has been violated or infringed to file writ application.44
35. It is humbly submitted that in the present case no legal or constitutional right of the petitioner
has been infringed by the respondent university and thus does not have Locus standi to
appear before this court.

43

Charan Lal Singh v. Gaini Zail Singh, [1984] 1 SCC 390 [1984] AIR 309(SC)

44

Justice P B Banerjee ,Writ remedies , 240 (5th ed. Volume 1) also see Calcutta Gas Co. Ltd v. State of West

Bengal,[1962] 3 SCR 1Supp: [1962] AIR 1044 (SC)

25

Memorial for the Respondents

IV.

WHETHER THE ORDER OF TRANS PALSHIAN UNIVERSITY

CONSTITUTIONALLY VALID?

36. It is humbly submitted that the order of Trans Palshian University of cancellation of hostel
allotment to Ms. X is constitutionally valid.
A.) NO VIOLATION OF ARTICLE 14
37. Art. 14 lays down the rule that like should be treated alike and not that unlike should be
treated alike.45Thus equality secured by Art. 14 is not absolute and rather is held to be a
comparative concept,46 as those who are unequal, in fact, cannot be treated by identical
standards as that may be equality in law but it would certainly not be real equality. 47 The
varying needs of different classes of persons often require different treatment,48also known as
Positive Discrimination49. The courts have evolved the principle that if the law in question is
based on rational classification,50 it is not regarded as discriminatory51
38. The question that whether persons are discriminated is to be seen by looking that whether
they are classified on the basis of an intelligible differentia reasonably related to the object of
the law.52 It raises questions of the fact, evaluation and law on which honest persons may

45

Supra 15 , at 112

46

I.R. Coelho v. state of TN, AIR 2007 SC 861

47

1990 SCR (2) 843, 1990 SCC (3) 130, See Municipal Committee Patiala v. Model town Resident Association, AIR

2007 sc 2844
48

Charanjeetlal chaudhary vs Union of India AIR 1951 SC 41

49

see State of Rajasthan v. Daya Lal, (2011) 2 SCC 429

50

See State of Bihar v. Bihar State plus-2 Lecture Association, AIR 2007 SC 1948

51

Ashutosh Gupta v. St. of Rajasthan (2002) 4 SCC 34

52

R. K. Dalmia vs Delhi Administration ,1962 AIR 1821, 1963 SCR (1) 253

26

Memorial for the Respondents

differ in good faith.53 To prove permissible classification mathematical nicety and perfect
equality are not required.54 However, mere inequality of treatment, does not per se amount to
discrimination.55 The S.C. observed that Art. 14 strikes at arbitrariness in state action and
ensures fairness and equality of treatment which has been followed ever since.56
39. The word Arbitrary57 is defined as : Law dependent on the discretion of an arbiter, not fixed ;
Based on mere opinion or preference ; unrestricted exercise of will, absolute hence despite.58
40. The Courts start with the presumption that the administrator would act honestly, properly and
in conformity with the policy and the principles laid down by the State. 59 Thus, onus to prove
that there has been an abuse of power is on the complainant.60 The court would scrutinize the
circumstances with regard to the object sought to be achieved to check to the bona fides of
the order.61 However, a provision cannot be held unconstitutional merely because the
authority vested with power may abuse his authority.62 They are enacted to balance equality
with positive discrimination.63 Even if it is applied to one person or a class of persons, it
53

Seervai H. M. , Consttutional Law Of Indian, 441( 3rd ed. 2014)

54

Kedar Nath Bajoria v. Stat of W.B., AIR 1953 Sc 404

55

State of A.P. v. N.R. Reddi AIR 2001 Sc 3616

56

E.P. Royappa v. State of Tamil Nadu AIR 1974 SC 555

57

58

Shorter Oxford Dictionary (3rd Ed.)

Supra 53, at 440

59

See Ram Krishna Dalmia v Justice Tendolkar (AIR 1958 SC 538 : 1959 SCR 279)>

60

MP jain , Constitutional Law, 889( 5th edn. 2012)

61

Pannalal Binjraj v. UOI AIR 1957 SC 397, 408 : 1957 SCR 233) Also, Mukherjee J, in Anwar Ali Sarkar vs The

State Of West Bengal AIR 1952 Cal 150

62

A.N. Bhati v. St. of Gujarat AIR 2005 SC 2115, see also Supra 21, at 10

63

M. nagaraj v suoi (2006) 8 SCC 212

27

Memorial for the Respondents

would be constitutional if there was sufficient basis or reason for the same. 64 The courts
allow the public authorities sufficient space for a proper exercise of discretion,65 the
jurisdiction of the courts would be to invoke the test of unreasonableness, for judging the
arbitrariness of the order.66
41. In case law of Lalit and Others v Govt. of NCT and Another67 One of the main issues before the Court
was whether the hostel was obligated to accommodate the petitioners because of their disabled status
even if it resulted in a disadvantage to the other students, the Court said that considering the limitation
of resources and primary purpose to cater to the needs of the children, allowing them to stay may
result in an unfair denial of the rights of other students.

42. The executive in its actions must act on the information available to it and the opinion it
formed thereon to be free from the vice of arbitrariness 68 and the authorities, need to show
the existence of particular circumstances and conditions under which such an order has been
passed.69
43. Gupta J. said : The concept of reasonableness does not exclude notions of morality and
ethics. How can it be disputed that the considerations of morality and ethics may have a
bearing on the reasonableness of the law in question.70

64

Charanjitlalchowdhury v. Union of India AIR 1951 SC 41

65

State of UP v. Johrimal AIR 2004 SC 3800

66

Provincial Picture House v. Wednesbury Corporation (1947) 2 All ER 640

67

W.P.(C) 3444/2008

68

Ram Krishna Dalmia v Justice Tendolkar (AIR 1958 SC 538 : 1959 SCR 279)

69

Panama Refining Co. v. Ryan 79 L Ed 446:293 US 388 (1934)

70

R.K. Garg v. Union Of India 1982 133 ITR 239 SC, (1981) 4 SCC 675

28

Memorial for the Respondents

44. It is humbly submitted that the order of the University was guided by public interest and was
based on principles of rationality and morality. The issue at hand being sensitive was dealt
with utmost care and diligence and the order of cancellation of seat of Ms. X in womens
hostel was made in interest of all.
A.) NO VIOLATION OF ARTICLE 15
45. The SC while dealing with constitutionality of Sec 37771 has considered the question whether
the prohibited discrimination on basis of sex in Art. 15(1) includes sexual orientation,72
where the court overruled Delhi HCs judgement in which it observed that discrimination on
basis of sexual orientation is analogous to the prohibited ground of sex in Art. 15(1)73
46. The inclusion of sexual orientation in the term sex was not contemplated by the founding
74

fathers, which can also be well construed from Art.15(4) which permits special provisions
for women. Also, list of prohibited grounds is exhaustive and therefore such a wide
interpretation of sex will open floodgate for such interpretations of other grounds as well
leading to failure of its objective.
C.)NO DISCRIMINATION ON T HE BASIS OF THE RELIGION
47.It is humbly submitted that the order of University in question has not given any consideration
to the religion of Ms. X. It was only based on the reasons mentioned by the respondent and was
passed in the light of institutions interest. Therefore, it does not attract the provisions based on
prohibition of discrimination on basis of religion like Art. 15(1) and Art. 29(2)
71

Section 377 of Indian Penal Code, 1870

72

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors on 11 December, 2013

73

Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001

74

C.A.D. Vol III

29

Memorial for the Respondents

THE PRAYER

In the light of issues raised, arguments advanced and authorities cited it is most humbly and
respectfully submitted that this Honble Court may adjudge and declare

In W.P. (PIL) NO. 47/2016 that

PIL filed by the Young Pashtiya Women Organisation is not maintainable be cause of lack
of sufficient interest and the petition being frivolous.

In W.P. No (Civil) 23/ 2016 that

Writ petition filed by Ms. X is not maintainable because the respondent not being amenable
to writ jurisdiction u/a 32 and due to absence of petitioners locus standi.

The Honble Court may also be pleaded to pass any other order, which this Honble Court
may deem fit in light of justice, equity and good conscience.

Counsel for Respondents

Place:
Date:

30

Memorial for the Respondents

31