ORAL ARUGUMENT : MOOTER 1:- UTSAV

YOUR LOARDSHIPS THE ISSUE MAY RAISE HERE about THE

Maintainability of this writ petition…

It is submitted that said writ petition is maintainable because the Article 226 of the
Constitution guarantees to a citizen , a fundamental right to Constitutional remedies under
part III whereby any person can approach the High Court to enforce rights guaranteed to him
under article 226.
Mylord Article 226 thus provides for expedition and inexpensive remedy for protection of
fundamental right from legislation and executive interference. Since the High Court of
Gujarat is a competent authority with the definition of Article 226. We have approached this
Hon’ble Court by filing writ petition.

YOUR LORDSHIP The petitioner has locus standi to approach the hon’ble

high court of Gujarat.

The matter involves question of law and gross injustice has been done by
the respondent.

It is submitted that In Mani Subrat Jain vs State of Haryana1 Justice Ray A.N. given a
definition of an aggrieved person” a person is said to be an aggrieved only when his legal
rights has been denied by someone who has a legal duty to do something or denied from
doing something. The denied legal right must be a legally enforceable right as well as a
legally protected right before one suffering a legal grievance can ask for a mandamus and
therefore, we are here before this hon’ble court.

The counsel submits the petitioner has passed with distinction in all five semesters of first
two and half year in respondent college . In final year she got married and subsequently got
pregnant because of which she have not attended classes during the academic year regularly
and has approached the respondent-1 College explaining the complications she underwent at
the time of pregnancy and on account of college Authorities not permitting petitioner to write
examination of third year B.Sc. Nursing Course and on account of their inaction in not
1
1977 AIR 276
 2

issuing her hall-ticket, she has approached this Court by filing the present writ petition.

YOUR LORDSHIP THERE IS NO ALTERNATIVE REMEDEY AVAILABLE WITH US

AND EVEN IF THERE IS ALTERNATIVE RAMEDY AVAILABLE THEN ALSO the
remedy under Article 226 of the Constitution is discretionary remedy.2

The Court is vested with power to entertain the petition where there occurs gross miscarriage
of justice and effective remedy is not available. YOURLORDSIP IS WAS HELD IN case of
Whirlpool’s Corp. v. Registrar of Trade Marks3 by the Apex Court that the jurisdiction of
the High Court in entertaining a writ petition under article 226 of the Constitution would not
be affected although there exist alternative statutory remedies.

MYLORAD IN THE PRESENT CASE as the respondent action has done gross injustice to
petitioner and therefore no other alternative remedy available for effective urgent reliefs,
except to file writ petition .
ISSUE:2 WHEATHER THE FUNDAMENTAL ENTAL RIGHT OF
PETITIONER INFRINGED OR NOT?

1. The Counsel Submits that our Constitution proclaim and protect status, dignity and self-
respect of motherhood; let our deeds, action and decision not be allowed to become
profane on motherhood of a woman.

The issue has another dimension in the context of Articles 14, 15, 19 and 21 of the
Constitution4. Our Constitution proclaims through Preamble, the equality of status and
opportunity. When a dignity is denied, that would amount to denial of status. That denial is a
discrimination and amounts to violation of equality before law and equal protection before
law as enshrined under Article 14.
2.
The fundamental rights are considered as part of a common thread of liberty, therefore,
fundamental rights enumerated under different articles may overlap. A student cannot be
discriminated on account of compelling family responsibility. Nor can she be thrown out

2
https://www.livelaw.in/news-updates/gujarat-high-court-article-226-article-227-difference-constitution-190443
3
(1998) 8 SCC 1
4
https://www.aaptaxlaw.com/constitution-of-india/fundamental-rights-article-14-15-16-17-18-19-20-21-21a-22-
23-24-25-26-27-28-29-30-31a-32-constitution-of-india.html

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from examination on account of compelling family responsibility. Our constitutional

scheme under Articles 14 to 16 is well designed to insulate any discrimination against
woman likely to be suffered by her on account of her familial obligations. Her
womanhood as mother flows from her moral personality and can be distinguished as a
superior right in any social standards. Any denial of such status certainly would offend
protection accorded to her under Articles 14 to 16.

It is submitted that the petitioner is deprived form examination just on the ground that she
could not attend classes being in the advanced stage of pregnancy or due to the delivery
of the child, such an act on the part of the college would not only be completely in
negation of the conscience of the Constitution of India but also of the women rights and
gender equality this nation has long been striving for

2.1Violation of article 14 to 16 and 21 of the constitution of India.
1. It is submitted that our Constitution proclaims through Preamble, the equality of status
and opportunity. When a dignity is denied, that would amount to denial of status. That
denial is a discrimination and amounts to violation of equality before law and equal
protection before law as enshrined under Article 14. The fundamental rights are
considered as part of a common thread of liberty.

2. It is submitted that our constitutional scheme under Articles 14 to 16 is well designed to

insulate any discrimination against woman likely to be suffered by her on account of her
familial obligations. Her womanhood as mother flows from her moral personality and can
be distinguished as a superior right in any social standards. Any denial of such status
certainly would offend protection accorded to her under Articles 14 to 16.
3. We humbly submit that in this case the petitioner cannot be discriminated on account of
compelling family responsibility, nor can she be thrown out from an institution on
account of compelling family responsibility.

4. It is submitted that Fairness in the educational institutions is a facet of equal opportunity

in education. In this case the college did not have any policies to prevent discrimination.
Therefore, the Regulations have to be read in harmony with the constitutional principles

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and those Regulations cannot be understood having an operational domain to invalidate

such Fundamental Rights conferred on woman under the Constitution.

5. It is submitted that In India's patriarchal society, pregnancy is often the family or

husband's decision rather than a women. Moreover, it is preferable that each partner,
especially the woman, has the capability to raise the child, which unarguably includes
financial strength. Obstructing her education, and thus a means to a livelihood, simply
because the petitioner didn't attend enough classes, might just hurt her prospects of a
secure life.

6. It is humbly submitted that in case of Secretary H.S.E.B. –vs- Suresh5 the Supreme
Court has held that the equality clause in the Constitution does not speak of mere formal
equality before law but embodies the concept of real and substantive equality which
strikes all the inequalities arising on account of vast social and economic differentiation
and is thus consequently the essential ingredient of social and economic justice.

Your lordship
The shortage of attendance was due to gynaecological medical problems wh
ich is ignored by the college while taking decision of not allowing petitioner
in her final year examination.

7. It is submitted that on account of advanced pregnancy the petitioner had not attend the
classes and as such, there was attendance shortage and thereby she was not allowed to
appear in 6th semesters.

Hence, she has prayed for a direction to first respondent – college to permit her to take up
the examination and contends that some of the students, who are also running shortage
of attendance have been permitted by the College Authorities and despite request being
made by petitioner that she did not intentionally absent herself when other students are

5
(AIR 1999 SC)

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afforded an opportunity to make up shortage of attendance to take up practical

examination, which was considered for internal assessment, she should also be permitted
to make good the loss of attendance by attending the practical examination. On these
grounds amongst others, we sought for a direction to respondents to permit her to take up
6th semester’s B.Sc. Nursing Course examination.

8. It is humbly submitted that though opportunity was afforded to other batchmates for
making up the shortage of attendance in practical’s, petitioner has not been extended
such opportunity. That the first respondent – college has also deliberately discriminated
the petitioner and it is due to gynaecological medical problems petitioner could not attend
the classes and Doctors had also advised her to take rest.
9. It is submitted that in present case the respondent in not allowing the petitioner to appear
for examination without considering the seriousness of situation faced by petitioner and
placing petitioner along with other students of college has lead to gross violation of
principle of equality provided by Constitution of India.

10. It is submitted that in C.B.Muthamma -vs- Union of India6 wherein the service rules
requiring a female employee to obtain permission of the Government in writing before
her marriage and denying her right to be appointed on the ground that the candidate is a
married woman was held to be discriminatory against women.

11. The counsel on behalf of petitioner significantly submits that in the case of Air India
vs. Nergesh Mirza7 where the Apex Court was confronted with the constitutional validity
of Regulation 46(i) (c) of Air India Employees’ Services Regulations which provided that
the services of the Air Hostesses would stand terminated on first pregnancy.
12. It is submitted that such the action taken by the respondent college in this case is, not only
manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits
naked despotism and is, therefore, clearly violative of Article 14 of the Constitution.

13. The petitioner submits that second respondents – the Indian nursing council is failed in
its duties in not making any provision under the extant Ordinance or Regulations to

6
(AIR 1979 SC 1868)
7
(1981) 4 SCC 335

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woman and as such, it is violative of Article 15(3) of the Constitution of India, which
mandates to make special provisions to women and children.

14. The petitioner humbly submits by raising the contention, that in the circumstances under
which petitioner was placed, first respondent-college was not justified in denying the
opportunity to petitioner from appearing in the examination and make up her shortage
of attendance.

15. Further we submit that the Kerala High Court in Neetu Bala v. Union of India8, held that
denial of employment to women solely on grounds of pregnancy was arbitrary and illegal
and thus violative of Articles 14, 16 and 42 of the Indian Constitution.

16. It is submitted that the first respondent-college erred in not considering the physical
condition of petitioner during her pregnancy and it ought to have realized the physical
difficulties that would have been faced by the petitioner in performing her duties in
nursing course while being pregnant and immediately after the child was born.

17. It is submitted that in this case, the petitioner was not allowed to sit for examination
merely on ground of maternity is arbitrary and illegal and violative of Article 14,16, and
42 of constitution of India. and further amount to non-compliance of India’s obligation
under Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW)9.
18.It is submitted that it is a saying that “Motherhood is priced of God, at
price no man may dare to lessen or misunderstand”. That by not granting
relaxation to the petitioner, the college will be making motherhood a
crime which no civilized democracy in the history of mankind has ever
done or will ever do. The respondent is making her pay the price for the
glory that is motherhood.

8
SCC OnLine P&H 602
9
https://www.un.org/womenwatch/daw/cedaw/

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19. That the Petitioner contends that she had orally intimated the college learned counsel
appearing for petitioner as already noticed hereinabove with regard to discrimination
made by first respondent – college to petitioner and other students, thus our contention
deserves acceptance, it could be seen from students who are having shortage in practical
examinations for making up the attendance shortage of 80%, has been afforded an
opportunity.

It is submitted that the respondent might contends that since those students had submitted
a representation it was considered and opportunity was extended, but petitioner did not
make any such representation and as such she was not given opportunity cannot be
accepted and same is not true, the petitioner had submitted a leave letter. In fact
petitioner had forwarded a representation and expressed orally in the Chambers of
Principal that petitioner intends to write 6th semester’s B.Sc. Nursing examination due to
be held.

20. That the first respondent – college though being aware of such request having been made
by petitioner yet did not extend opportunity to the petitioner.

2.3 The shortage of attendance was due to genuine medical issue during
pregnancy.
21. The counsel alleged that respondent in not allowing student with such excellent result and
satisfactory conduct merely on ground of maternity is constitutionally invalid as the
aforesaid college has itself failed to avail provision of maternity to female students and
still not considering serious medical conditions faced by the petitioner has lead to felt
humiliated not only to petitioner but also the nature of motherhood.
22. It is submitted that THE HIGH COURT OF DELHI In case of Inspector (Mahila)
Ravina v. Union of India & Ors.10 S. Ravindra Bhat and V.K. Shali, JJ, While deciding
whether the petitioner’s pregnancy signified her unwillingness or inability to attend the
course, the Court examined whether penalising the petitioner for her pregnancy and
forcing her to choose between having a child and her career violated her rights under
Articles 21, 14, 15 (1) and 16 (2) of the Indian Constitution.
23. The counsel on behalf of petitioner submits that the choice to bear a child is not only a

10
MANU/DE/3946/2015

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deeply personal one for a family but is also a physically taxing time for the mother. This
right to reproduction and child bearing is an essential facet of Article 21 of the
Constitution and this commitment is signified by Article 42 (“Provision for just and
humane conditions of work and maternity relief- The State shall provide conditions for
securing just and humane conditions of work and for maternity relief”) and Article 4511
(“Provision for early childhood care and education to children below the age of six years-
The State shall endeavour to provide for early childhood care... ”).
24. It is submitted that the respondent had hardened the situation for petitioner by not
allowing her to condone her shortage of attendance.
25. It is submitted that if a petitioner were forced to choose between having a child and her
career would amount to gross injustice to petitioner and motherhood. There was no
unwillingness- on the part of an petitioner to undertake the lecture but the choice
exercised by a petitioner to become a parent stands on an entirely different footing. If the
latter is treated as expressing unwillingness, rule of attendance would clearly violate
Article 21.
26. The petitioner did not attend that course, in truth, her “unwillingness” stemmed from her
inability due to her pregnancy. In this present situation the petitioner was unable to attend
the class because of her severe medical condition as against the college regulations which
imposed restrictions on a female student pregnancy at the stage of the petitioner’s career.
And thus petitioner exercised her right therefore to become a parent should not operate to
penalise her, and her “choice” to do so was irrelevant, in the circumstances of the case;
the college had not taken the reasons for the unwillingness into account given the
admitted fact that she was pregnant.
27. The petitioner submits that she had met the Principal of first respondent – college and had
requested to hold improvement exams and assign additional make up duties to enable
her to appear and write 6th semester’s B.Sc. examination, which first respondent – college
refused to do and asked her to come back to the college in the next academic year and as
such, petitioner had to approach this Court by filing the present writ petition. That on
account of petitioner having conceived during this period and on account of
gynaecological problems encountered by her, she could not attend the classes and it was
purely on the advice of Doctors as per the medical certificate produced along with the
writ petition.
28. The counsel contends that Motherhood is all about love, care, affection, protection,
11
The Constitution Of India 1949

Memorial on behalf of Respondent

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nurturing of child etc. It is a dignity inherent in a woman. Dignity means the quality that
holds her in esteem. Motherhood is perhaps the most important challenging job in the
world. The principles enunciated through the Human Rights Law demand the dignity of
the individual is protected. On account of her social status as above, a woman shall not be
discriminated.
29. There being no guidelines in this regard formulated by the respondent, petitioner cannot
be deprived of writing the examination or she should be given an opportunity for making
up the deficit attendance, since it is the constitutional mandate enshrined under the
Directive Principles of State Policy contained under Part IV of the Constitution of India.
2.4 Violation of articles 41 and 42 of constitution of India.

30. It is submitted that the Article 41 of the Constitution of India enjoins an obligation on the
State to make effective provision for securing the right to work and education and
Article 42 mandates the State should provide securing just and humane conditions of
work and maternity relief and the objectives of these provisions is to facilitate maternity
benefits to women, who are in service or pursuing education and the action of first
respondent - college in not providing opportunity to petitioner to make up her shortage of
attendance, which was due to her pregnancy, is violative of constitutional mandate
namely Articles 41 and 42 of Constitution of India.
31. The counsel further submits that Indian cultural and traditional practices show that
motherhood is an essential part of family responsibility. International Human Rights Law
thus protect dignity of woman and also family. The Constitution under its various article
deals with the protection of woman. Person-hood of a woman as mother is her acclaim of
individuality essentially valued as liberty of her life. Mother's role in taking care of the
child has been considered as an honour; she enjoyed such status because of her position in
respect of the child. Therefore if on any reason she could not attend her workplace or
education due to her duties towards child (compelling circumstances), the institution has
to protect her person-hood as “mother”. If not that, it will be an affront to her status and
dignity.
32. The counsel submits that no arbitrary or unreasonable action to be against a woman for
her absence on account of compelling circumstances for taking care of her child. And no
regulations can stand in the way of a woman for claiming protection of her fundamental
right of dignity as a mother. The aforesaid action by a college can be only regarded as a
challenge against the dignity of a woman. Motherhood is not an excuse in employment

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but motherhood is a right which demands protection in given circumstances. The college
has failed to consider her duty attached to mother which prevented her from
attending examination.
33. It is submitted that the motherhood cannot be seen as a burden on them to pursue such
dreams and visions. Thus, a female students cannot be thrown out from college for
remaining absent on account of taking care of child, if such taking care is indispensable
for her. In the enforcement of fundamental right, the college cannot raise a plea to defend
themselves by referring to regulation requirements of attendance.

34. That the Article 41 and 42 of Constitution of India reads as under:

“41. Right to work, to education and to public assistance in certain cases:-- The State
shall, within the limits of its economic capacity and development, make effective
provision for securing the right to work, to education and to public assistance in cases of
unemployment, old age, sickness and disablement, and in other cases of undeserved want.

42. Provision for just and humane conditions of work and maternity relief:-- The State
shall make provision for securing just and humane conditions of work and for maternity
relief.”(emphasis supplied)

35. It is humbly submitted that the respondent namely, Great Medical College and Indian
Nursing Council to had not formulates any policy for the female students who are
studying in various courses, if on account of pregnancy are not able to attend the classes
or deprived of the benefit of appearing in an examination as a result of their absence
either in theory or practical’s and also they have not introducing such remedial
measures in consonance with Article 15(3), Article 41 and Article 42 of the Constitution
of India.

36. Therefore, action of Principal of first respondent – college in singling out the petitioner
is not in good taste, relief sought for by the petitioner on these grounds also must be
granted by this hon’ble court.

37. It is submitted that the respondents don’t have formulated any policy to grant relaxation
in the matter of shortage of attendance in exceptional cases like ill health, bereavement
in the family, medical grounds requiring hospitalization or absolute bed rest or any other
compelling circumstances whereunder student is not in a position to attend classes, and

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as a result the person like petitioner in this case suffers a lot.

38. The counsel contends that India being signatory Of CEDAW  and Article 51 of the
Constitution imposes an obligation on the State to foster respect for international law and
treaty. However, the treaty provisions cannot be invoked without the same being
incorporated through enabling legislation. Although CEDAW has not been incorporated,
the judiciary through its proactive role have paved the way to use the principles of the
treaty in many judgments.
3.1 The decision taken by the college to not allowing the petitioner in final
year examination is unjust, unfair.

39. It is submitted that in this case, the petitioner was not allowed to sit for examination
merely on ground of maternity is arbitrary and illegal and violative of article 14,16, and
42 of constitution of India, and further amount to non-compliance of India’s obligation
under Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW).
40. The CEDAW/C/IND/2-3 Supreme Court in Vishaka’s case12 has held that any
international convention, not inconsistent with the fundamental rights and in harmony
with its spirit must be read into these provisions to enlarge the meaning and content to
promote the object of the constitutional guarantee. This decision has enabled women to
invoke the provisions of the international treaties and its enforcement. In this case, the
Supreme Court has laid down the guidelines for combating sexual harassment and while
doing so it has adopted the definition of sexual harassment from General
Recommendation of the Convention.
41. The counsel contends that petitioner was unable to attend the classes on account of her
gynaecological problem encountered by her and it was purely on the advice of the doctor
and medical certificate produced for same. There being no guidelines in this regard
formulated by the respondent, petitioner cannot be deprived of writing examination or
she could be given an opportunity for making up the deficit attendance, since it is the
constitutional mandate enshrines under Directive Principles Of State Policy contained
under part IV of Constitution along with obligation under international convention. The
respondent action is arbitrary and unreasonable with the constitutional provision and
international provision which carry a good amount of weightage in the governance of the

12
(AIR 1997 SC 3011)

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country.
42. The counsel contends that in somewhat similar circumstances High Court of Delhi in
W.P.(C) No.8302/2009 and W.P.(C) No.8419/2009 was examining the claim of two
students, who sought for relaxation in the shortfall of the attendance by placing reliance
on the extant Ordinance i.e., Sub-Rule (d) of Rule 2(9) and Ordinance VII read with
Article 42 of the Constitution of India and contending they were in the advanced stage of
pregnancy and as such they could not attend classes. In conclusion it was held that Sub-
Rule (9) of Rule 2 of Ordinance VII would applicable to all courses excluding LLB
Course and while discussing the power for condoning the attendance shortage it has been
opined by the Delhi High Court to the following effect: “53. Of all the rights of women,
to be a mother is the greatest. Long ago, the Universal Declaration of Human Rights, by
Article 25 had declared that everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services, and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his control. Article 25(2) provides that: 2) Motherhood and
childhood are entitled to special care and assistance. All children, whether born in or out
of wedlock, shall enjoy the same social protection.
43. The counsel on behalf of petitioner submits that, it would, while on the topic, also be
essential to refer to the Convention for Elimination of All Forms of Discrimination
Against Women (CEDAW). The Vienna Convention on the Elimination of all forms of
Discrimination Against Women was ratified by the U.N.O. on December 18, 1979. That
the Government of India who was an active participant to CEDAW ratified it on June 19,
1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles 5(e),
16(1), 16(2) and 29 thereof.
44. It is submitted that the Preamble of CEDAW reiterates that discrimination against
women, violates the principles of equality of rights and respect for human dignity, is an
obstacle to the participation on equal terms with men in the political, social, economic
and cultural life of their country; hampers the growth of the personality from society and
family and makes it more difficult for the full development of potentialities of women in
the service of their countries and of humanity.
45. The petitioner is pertinent to quote the relevant provisions here: 11(2). In order to
prevent discrimination against women on the ground of marriage or maternity and to
ensure their effective right to work, states parties shall take appropriate measures; (a) To

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prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or

of maternity leave and discrimination in dismissals on the basis of martial status; (b) To
introduce maternity leave with pay or with comparable social benefits without loss of
former employment, seniority or social allowances;
46. It is submitted that in the above-mentioned case the respondent has not only utterly
failed in providing special protection and care to petitioner student suffering from the
advanced stage of pregnancy but has also disregard the importance of motherhood in the
society by not implementing the necessary measures to provide maternity to female
students of the aforesaid college.
47. The counsel on behalf of petitioner contends that the circumstances under which the
petitioner was placed, respondent college in denying the opportunity to petitioner from
appearing in the examination and make up her shortage of attendance has resulted in
violation of provision of Universal Declaration of Human Right Article 25 it has been
which declares that “Everyone has a right to standard of living adequate for the health
and well-being of himself and of his family, including food, clothing, housing and
medical care and necessary social services and the right to security in the event of
unemployment, sickness, disability, widowhood, old age or other lack of livelihood in
circumstances beyond his/her control.”
48. It is further submitted by contending that Article 25(2) of UDHR13 categorically
provides a mother and child are entitled to special care and assistance respondent being
such a huge education institution has utterly failed to comply with the same and as
such, petitioner has prayed for a direction to respondents 1 and 2 to formulate a policy to
ensure that female students who suffer from deficit attendance on account of pregnancy,
are granted benefit of condonation of deficit attendance. On these grounds, petitioner
seeks for allowing the writ petition and in support of his submission the petitioner relies
upon an unreported judgment of the Delhi High Court rendered on 12.07.2010 in W.P.
(C) No.8302/2009
49. It is humbly submitted that the in the case of Madhu Kishwar & Ors. Vs. State of
Bihar & Ors.14 , the Apex court held that though the Directive Principles and
Fundamental Rights provide the matrix for development of human personality and
elimination of discrimination, these conventions (CEDAW) add urgency and teeth for
immediate implementation. Hence, it is this court which has been enjoined upon the

13
https://www.un.org/en/about-us/universal-declaration-of-human-rights
14
(1996) 5 SCC 125

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duty to put life into the provisions of these international conventions.

50. The counsel contends that in Laxmi Mandal v. Deen Dayal Harinagar Hospital 15, the
Delhi High Court stated that a woman’s right to health, including her right to
reproductive health, is a facet of her “inalienable survival rights” under Article 21 of the
Constitution. Relying on a range of international human rights instruments, the Court
emphasized the interrelatedness of civil and political and socio-economic rights to state
that the proper implementation of schemes designed to give effect to these rights was
essential for meeting the state’s obligations arising from these rights.
51. The counsel submits that in Municipal Corporation of Delhi 16, the muster roll women
workers of the Delhi Municipal Corporation were denied the benefit of maternity leave
on the ground that their services were not regularized. The industrial dispute was
referred to the Industrial Tribunal which passed an award in favor of the women
workers. The award was challenged unsuccessfully before the Delhi High Court and the
matter ultimately landed up before the Supreme Court. For dismissal of the appeal filed
by the Corporation of Delhi, the Supreme Court relied upon Articles 39, 42 and 43 of the
Constitution and also the provisions of Article 11 of CEDAW.
52. It is submitted that in case of Gaurav Jain’s case17, the Supreme Court dealing with
women in prostitution, has reiterated the principles of CEDAW and has acknowledged
that human rights for women including girl children are inalienable, integral and
indivisible part of the universal human rights. In Apparel Export Promotion Council
case, (AIR 1999 SC 625) the Supreme Court, dealing with sexual harassment, has
recognized that the international instruments cast an obligation on the Indian State to
gender sensitize its laws and the Courts are under obligation to see that the message of
the international instruments is not allowed to be drowned. The Courts are under an
obligation to give due regard to International Conventions and Norms for construing
domestic laws more so when there is no inconsistency between them and there is a void
in the domestic law.
53. The counsel by relying on the aforesaid judgement of hon’ble supreme court submits to
hon’ble court that in present case the respondent has not allowed petitioner to sit for
examination without taking note of serious medical condition faced by the her and
hurdled her with attendance which will come in way of a female student absent from
college or university due to her pregnancy, therefore order should be made to balance the
15
[ W.P.(C) Nos. 8853 of 2008 High Court of Delhi ]
16
(Muster Roll
17
(AIR 1997 SC 3021)

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situation. After all everyone should have equality in opportunity of learning along with
their reproductive rights under constitution and International convention.
Further it is submitted that the Kerala High Court in Neetu Bala v. Union of India18, held
that denial of employment to women solely on grounds of pregnancy was arbitrary and illegal
and thus violative of Articles 14, 16 and 42 of the Indian Constitution.

18
THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH, CWP No.6414 of 2014

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Respondent oral argument

ARGUMENT ADVANCED

ISSUE:2 WHEATHER THE FUNDAMENTAL ENTAL RIGHT OF

PETITIONER INFRINGED OR NOT?
1. The Counsel Submits that our Constitution proclaim and protect status, dignity and self-
respect of motherhood When a dignity is denied, that would amount to denial of status.
That denial is a discrimination and amounts to violation of equality before law and equal
protection before law as enshrined under Article 14.

The counsel submits that our college regulation was framed in the view of
constitutional scheme under Articles 14,19 and 21 is to insulate good discipline and
code of conduct in the college and is applicable to all the students of the college
equally without any discrimination, therefore there is no violation of any right of
petitioner.

There is no violation of article 14 of constitution of

India.
2. The counsel on behalf of petitioner submits that the college is entrusted with the duty to
conduct examinations for the purpose of acquiring degrees and in that direction
prescribes certain requirements like attendance, laboratory work, seminars etc., the same
cannot be said to be ultra vires the Act.

3. The counsel submits that respondent has made the regulation in accordance with article
14 and that was equally applicable to each and every student. Therefore, the
respondent’s act in relying upon the settled rule has not acted against article 14 of the
Constitution.

4. The counsel submits that Supreme court in Prakash v. Union of India19 observed that
where specific power is conferred without prejudice to the generality of the general
power, the particular power is only illustrative and does not in any way restrict the

19
Prakash Singh v. Union of India (2006) 8 SCC 1

Memorial on behalf of Respondent

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general power.

5. The counsel submits that hon’ble Rajasthan High Court in Manoj Kumar Rawat and
etc. v. Shri Khandelwal Vaishya Central Sr. Higher Secondary School, Jaipur20,
wherein it is held :
"In educational matters, ordinarily court does not interfere in the decisions of the
authorities as the educational institutions and the Board/University are best fitted to
examine the matter. Court should not nor mally impose its decision on them. The
Regulation providing minimum 75 attendance is for the advantage of the students of a
qualitative education. It also leads to a sound foundation of education at School level.
The Regulations providing educational discipline should not be permitted to be violated.
The Regulations of the Board are meant to be obeyed and not flouted and the Court
should not become a party in flouting the Regulations on the ground of misplaced
sympathy towards the students. In any event, it is more a matter of policy for the Board
and a facet of the system of education for the educationalist to consider, which should be
beyond the scope of judicial review in the present proceedings.”

6. The counsel on behalf of respondent submits that the regulation made by the college
were meant to maintain discipline and for providing qualitative education to the student
which ultimately leads to strong foundation of country.
7. It is further submitted that therefore the regulation needs to be obeyed and properly
fulfilled by each student and if anyone fails to comply with the requirement will amount
to violation of norms of the college. The petitioner in aforesaid case being in good health
has failed to comply with norms of College.

8. The counsel submits that in the case of Guru Gobind Singh Indraprastha University
vs. Naincy Sagar & Anr21. (supra) where the court held as follows:

"27. The importance attached to attendance in classes in a professional course like BA

LLB/BBA LLB cannot be overstated. There are a line of decisions of the Supreme Court
and the High Courts, where it has been opined that fixation of qualifying standards

20
AIR 1994 NOC 25
21
IN THE HIGH COURT OF DELHI AT NEW DELHI LPA 713/2019 & C.M. APPL.48802-48804/2019

Memorial on behalf of Respondent

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including minimum percentage of attendance is a matter which is best left to expert

academic bodies and courts should be slow to interfere in such policy matters unless the
decision taken is patently and palpably arbitrary, illegal or in violation of the
Constitution of India. Once an academic body has decided on a minimum percentage of
lectures that a student must attend at every stage or in the aggregate, then courts must
show deference to the said decision as the presumption is that being an expert in the
field, the body has applied its mind before prescribing an eligibility criteria.

9. The counsel contends aforesaid rules and regulations has framed by the respondent
within the direction of the expert academic bodies and in light of standard set by the
Indian Nursing Council in the best interest of students. The petitioner is well aware of
the norms of said college and although knowing the importance of the professional
course in which she enrolled has not only violated the regulation by not complying with
rules but has initiated the action against college on the ground of violation of right to
equality under article 14.

10. The counsel on behalf of petitioner submits that in the case of Khalid Ansar Haq and
Anr. v. Aligarh Muslim University and Anr. 22, in which it has been held that if the
university permits a candidate having shortage of attendance to appear in the
examination, debarring others who fell in the same category is discriminatory and those
students were allowed to appear in the examination. In another decision as has been
given by this Court in the case of Parvez Ahmad23 (supra), the Division Bench in paras
19 and 20 has observed as thus :"19. In our view, discrimination envisaged under
Article 14 of the Constitution is conscious discrimination and a discrimination arising
out of over-sight is no discrimination.

11. The counsel here contends that in the present case the respondent was adhered to
regulation of College has not discriminated against the petitioner in not permitting her
to appear in the examination as she has not fulfilled the regulation of minimum of 80 %
of attendance. The respondent has not only for debarred the petitioner to appear in the
examination but has also debar the other students who has failed to comply with
regulation of the college. Therefore, respondent action was solely upon college
regulation and not violated the principles of equality.

22
1985 UPLBEC 1514
23
AIR 1988 ALLAHABAD 18

Memorial on behalf of Respondent

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12. The counsel submits that in the case of Baldev Raj Sharma Vs. Bar Council of
India24, it was observed that there is a substantial difference between a course of study
pursued as a regular student and a course of study pursued as a private candidate. It was
observed that regular attendance for the requisite number of lectures, tutorials etc. has a
purpose. Rules framed by the Bar Council of India were upheld.

13. The counsel on behalf respondent submits that course requirement has not been fulfilled
by petitioner namely, in assignment of few subjects like
“Communication & Educational Technology”, “Community Health Nursing” and
“Medical Surgical Nursing” and as such, petitioner is not eligible to take even May
2020 examination as the Regulations of The Great Nursing College does not provide
any provision for condoning the shortfall of attendance to permit the petitioner to take
up examination.

14. It is submitted that said Regulator or any other university in India or abroad during said
period and each academic year would be taken as a unit for calculating the attendance.
Further submits that keeping above regulation in mind the fact states disclose that
petitioner has not attended classes regularly in 6 th semester not furnished the reason
behind the same in presided manner even though the petitioner contends that she had
intimated the Authorities but as such there is no piece of paper produced to substantiate
said claim.

15. The counsel submits that there is no dispute to the proposition that a candidate not
possessing eligibility criteria would not be entitled to appear for examination during the
academic year. The extant Regulations which govern the field would squarely be
applicable to all the candidates / students. Until and unless the students fulfill the
criteria of attendance prescribed, which is mandatory the college cannot be compelled
to do something which is beyond its authority or legal competence. Since the petitioner’s
has great deficiency in matter of attendance and the regulation of college did not grant
any authority to principal to condone such delay which is beyond the jurisdiction or
competence of the Principal. Therefore, this completely disable the case of petitioner.

16. The counsel contends that the petitioners has placed no material which could establish
the fact that she had in fact intimated first respondent - college about her inability to
attend the classes or in other words, she had made an application or request to first
respondent - college seeking for either conducting special classes or make up classes for
24
1989 Supp (2) SCC 91

Memorial on behalf of Respondent

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practical. Further contends that being familiar with regulation of college regarding
mandatory attendance did not at the first available opportunity seek leave to absent
herself from the college on account of pregnancy or advanced pregnancy. And thereafter
immediately before the commencement of final semester examination she had attended
all lectures in the last week which would clearly indicate that the petitioner was in good
condition though remained irregular and in spite of shortcoming on her part she has
approached various institutions complaining about the college and has tried to tarnish
the reputation of the college.

2.2 There is no violation of Article 41 and 42 of the Constitution of India.

17. The counsel contends that the petitioner was not only been singled out by the Principal
of first respondent – college, as she did not act as per the regulations but being familiar
to the regulations does not even found it necessary to inform the reason behind such a
long absent to the principal of college. The respondent states that since the beginning of
the six semester the petitioner was irregular but however in the last week, she attended
all the classes regularly which clearly conveys that the petitioner was in good health to
attend the lecture and was well aware of the regulations dealing with attendance .
Further contends that in spite of being irresponsible, the petitioner is now making mere
excuse of severe condition and taking an undue advantage of Article 41 and 42 of the
constitution.

18. The council submits that Apex Court in the decision ruled that the principal has no
power to condone shortage of attendance 25. The counsel contends that in the present case
the principal of College has no power to condone shortage of attendance and therefore
the principal cannot be compelled to do the same.

19. The counsel on behalf of respondent contends The first respondent – college has
provision for notifying the students with regard to their attendance and therefore the
respondent college had notified the students by affixing intimation letter on the Notice
Board regarding submission of requests by students who intend to make up for
attendance by calling upon the students to submit their request letter with appropriate
reason in that regard within a day and pursuant to same, some of the students submitted
their representations and it was accepted by the Principal and they were granted
permission to make up the stipulated number of classes or attendance as prescribed by
Indian nursing council and being well aware with the said provision the petitioner did
25
Regional Engineering College Hamirpur and another (supra)

Memorial on behalf of Respondent

 21

not even bother to submits her letter furnishing reason behind her absent and therefore
was not allowed with those students were given the opportunity as per Regulation of
Great nursing college. It was further submitted by the counsel for respondent that the
attendance being regularly displayed on the notice board and hence there is no question
of there being violation of principles of natural justice so far the petitioners are
concerned.

2.3 There is no violation of Article 21 of Constitution of India.

20. The counsel on behalf of respondent contends that the choice to bear a child is right to
reproduction and child bearing is an essential facet of Article 21 of the Constitution and
this commitment is signified by Article 42 (“Provision for just and humane conditions of
work and maternity relief- The State shall provide conditions for securing just and
humane conditions of work and for maternity relief”) and Article 45 (“Provision for
early childhood care and education to children below the age of six years- The State
shall endeavor to provide for early childhood care... ”).

21. It is submitted that the Maternity Benefits Act, 1976 protects the expecting mother’s
interests in employment. The regulation of respondent college has been formulated by
the expert of academic bodies having knowledge of the various situation, has complied
with the provision of act by affording due importance to the provision for act in
providing a reasonable period of leave before and after childbirth to often the situation
for student dealing with the pregnancy but the said benefit can be availed by the student
with prior application for the same. The petitioner in the present case has failed to
comply with minimum attendance requirements and also failed to approach the
respondent in prescribed manner for maternity leave which indicates the fault on behalf
of petitioner.

22. The counsel for respondent contends that in certain situation the respondent has
provision to provide relaxation of attendance with the prior approval of the leave by
authority concerned . In the present case the petitioner being in good medical condition
has not find it necessary to inform the college about his absent but immediately before
the commencement of final exam stared attending all the lecture in last week of the
semester which clearly shows unwillingness- on the part of petitioner to undertake the
lecturer. The respondent has well complied with requirements of the constitution and the
failure on the part of the petitioner is the consequences of her very own action the action

Memorial on behalf of Respondent

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of Principal of first respondent – college in singling out the petitioner is in accordance

with provision relief sought for by the petitioner on these grounds also cannot be
granted.

23. There being guidelines in this regard formulated by the Indian Nursing Council,
petitioner was withheld in writing the examination since it is the regulation of the
respondent college framed in accordance with provision enshrined under the Directive
Principles of State Policy contained under Part IV of the Constitution of India.

24. The Counsel Submits that our Constitution proclaim and protect status, dignity and self-
respect of motherhood When a dignity is denied, that would amount to denial of status.
That denial is a discrimination and amounts to violation of equality before law and equal
protection before law as enshrined under Article 14. The counsel submits that our
college regulation was framed in the view of constitutional scheme under Articles 14,19
and 21 is to insulate good discipline and code of conduct in the college and is applicable
to all the students of the college equally without any discrimination .

25. It is submitted that being such reputed academic institution the college has been helpful
to students in unavoidable situation provided that they have duly approach the authority
for the leave.

ISSUE: 3 WHEATHER THE RESPONDENT COLLEGE HAS FAILED

TO COMPLY WITH NORMS OF CEDAW?
26. It is submitted that respondent is attached with Indian Nursing Council which being
government body has formulated the guidelines for implementation of the convention by
various education institutions which fall under the same. The respondent falling under
the same criteria had formulated the college regulation in accordance with the guidelines
given by Indian Nursing council. The petitioner being aware of the regulation of the
college since beginning of course then also failed to comply with the same and therefore
was exempted from writing examination on account of her shortage of attendance. The
respondent action is within the power and responsibilities conferred to them and
therefore was not arbitrary and unreasonable with the constitutional provision and
CEDAW26 and any international provision which carry a good amount of weightage in
the governance of the country.

3.1 The norms of CEDAW is followed by the respondent without any

26
https://www.un.org/womenwatch/daw/cedaw/

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 23

violation.
27. The counsel submits that  some of the Articles of CEDAW27, which may help in
throwing some light on the issue raised in the writ petition, are as follows:;(ii) Article
5(b) mandates the States Parties to take appropriate measure to ensure that family
education includes a proper understanding of maternity as a social function;(iv) Article
10(f) mandates the States Parties to take appropriate measures for the reduction of
female drop-out rates;

28. The counsel contends that India being signatory Of CEDAW  and Article 51 of the
Constitution imposes an obligation on the State to foster respect for international law
and treaty. However, the treaty provisions cannot be invoked without the same being
incorporated through enabling legislation. Although CEDAW has not been incorporated,
the judiciary through its proactive role have paved the way to use the principles of the
treaty in many judgments.
29. The Supreme Court in Vishaka’s case28 has held that any international convention, not
inconsistent with the fundamental rights and in harmony with its spirit must be read into
these provisions to enlarge the meaning and content to promote the object of the
constitutional guarantee. This decision has enabled women to invoke the provisions of
the international treaties and its enforcement. In this case, the Supreme Court has laid
down the guidelines for combating sexual harassment and while doing so it has adopted
the definition of sexual harassment from General Recommendation 19 of the
Convention.

30. It is submitted that respondent is attached with Indian Nursing Council which being
government body has formulated the guidelines for implementation of the convention by
various education institutions which fall under the same. The respondent falling under
the same criteria had formulated the college regulation in accordance with the guidelines
given by Indian Nursing home. The petitioner being aware of the regulation of the
college since beginning of course then also failed to comply with the same and therefore
was exempted from writing examination on account of her shortage of attendance. The
respondent action is within the power and responsibilities conferred to them and
therefore was not arbitrary and unreasonable with the constitutional provision and

27
https://www.un.org/womenwatch/daw/cedaw/
28
(AIR 1997 SC 3011)

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international provision which carry a good amount of weightage in the governance of

the country.
31. The counsel on behalf of respondent submits that, it would, while on the topic, also be
essential to refer to the Convention for Elimination of All Forms of Discrimination
Against Women (CEDAW). The Vienna Convention on the Elimination of all forms
of Discrimination Against Women was ratified by the U.N.O. on December 18, 1979.
That the Government of India who was an active participant to CEDAW ratified it on
June 19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles
5(e), 16(1), 16(2) and 29 thereof. The Preamble of CEDAW reiterates that
discrimination against women, violates the principles of equality of rights and respect
for human dignity, is an obstacle to the participation on equal terms with men in the
political, social, economic and cultural life of their country; hampers the growth of the
personality from society and family and makes it more difficult for the full development
of potentialities of women in the service of their countries and of humanity. The
petitioner is pertinent to quote the relevant provisions here 11(2).
32. The counsel submits that in the above-mentioned case the respondent has not failed in
providing special protection and care to student suffering from the serious
circumstances provided that they must follow the mechanism of leave application for
the same. The respondent being engaged in imparting knowledge to students have made
regulation with some kind of relaxation involved in it but if the petitioner is herself
negligent towards her responsibility cannot blame the respondent college who has
dealing in said education services with due care since so long.
3.2 The decision taken by the college to not allowing the petitioner in final
year examination is just, fair and according to rules and regulation of
institute.
33. The counsel on behalf of respondent contends that the circumstances under which the
petitioner is placed clearly indicates that the petitioner has herself remained
irresponsible towards her duties and neither consider the importance of the regulation of
the college, therefore respondent college in denying the opportunity to petitioner from
appearing in the examination and make up her shortage of attendance has not resulted in
violation of provision of Universal Declaration of Human Right Article 25(2) 29 of
which provides a mother and child are entitled to special care and assistance respondent

29
https://www.un.org/en/about-us/universal-declaration-of-human-rights

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being such a huge education institutions has duly consider the same and has adopted
same and as such, petitioner’s action has herself disabled her from taking the benefits of
the same.
34. The counsel submits that in Municipal Corporation of Delhi30, the muster roll women
workers of the Delhi Municipal Corporation were denied the benefit of maternity leave
on the ground that their services were not regularized. The industrial dispute was
referred to the Industrial Tribunal which passed an award in favor of the women
workers. The award was challenged unsuccessfully before the Delhi High Court and the
matter ultimately landed up before the Supreme Court. For dismissal of the appeal filed
by the Corporation of Delhi, the Supreme Court relied upon Articles 39, 42 and 43 of the
Constitution and also the provisions of Article 11 of CEDAW.
35. In Gaurav Jain’s case31, the Supreme Court dealing with women in prostitution, has
reiterated the principles of CEDAW and has acknowledged that human rights for women
including girl children are inalienable, integral and indivisible part of the universal
human rights. In Apparel Export Promotion Council case32, the Supreme Court,
dealing with sexual harassment, has recognized that the international instruments cast an
obligation on the Indian State to gender sensitize its laws and the Courts are under
obligation to see that the message of the international instruments is not allowed to be
drowned. The Courts are under an obligation to give due regard to International
Conventions and Norms for construing domestic laws more so when there is no
inconsistency between them and there is a void in the domestic law.
36. The counsel by relying on the aforesaid judgement of hon’ble supreme court submits to
hon’ble court that in present case the respondent has given due importance to
constitutional provision as well as international convention and has framed regulation
accordingly. The respondent has not allowed petitioner to sit for examination after
taking note of carelessness on petitioner part in not complying with the regulation which
is necessary in one self-development.

30
(AIR 1997 SC 3021)
31
AIR 1997 SC 3021
32
(AIR 1999 SC 625)

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PRAYER

In the light of the facts stated, issues raised, arguments advanced and
authorities cited, it is most humbly prayed by the petitioner that the
Hon’ble Supreme court may be pleased to:

a) Held that the current writ petition in not maintainable.

b) Held that the current writ petition is dismiss.
c) Held that the decision taken by the college is valid and appropriate.

To pass such orders as may be deemed necessary on the facts and in

circumstances of the case.
For this act of Kindness and Justice, the respondent, as in duty bound, shall
forever pray.

Memorial on behalf of Respondent