AMCC-28

1ST JUSTICE ANIL KUMAR UPADHYAY MEMORIAL NATIONAL MOOT COURT COMPETITION 2024

1ST JUSTICE ANIL KUMAR UPADHYAY MEMORIAL NATIONAL MOOT COURT COMPETITION 2024

IN THE SUPREME COURT OF INDUS

PUBLIC INTEREST LITIGATION

W.P. (Civil) No. of 2024

Under Art. 32 of the Constitution of Indus, 1950,

Women Rights Sangathan

(APPELLANT)
VERSUS

Union Of India
(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF

THE SUPREME COURT OF INDUS

MEMORIAL FOR THE APPELLANT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS.........................................................................................

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

STATEMENT OF JURISDICTION...............................................................................

ISSUES RAISED............................................................................................................

STATEMENT OF FACTS..............................................................................................

SUMMARY OF ARGUEMENTS..................................................................................

ARGUMENTS ADAVNCED..........................................................................................

1. WHETHER THE PRESENT PUBLIC INTEREST LITIGATION PETITION IS

MAINTAINABLE?..................1

1.1. Absenteeism of Locus Standi

1.2. No Violation of Fundamental Rights

1.3. Judiciary has no say in policy decisions of the legislative authority

2. WHETHER NON-RECOGNITION OF MENSTRUAL LEAVE TO GIRLS AND WOMEN'S OF

ALL AGE IS VIOLATIVE OF THEIR FUNDAMENTAL RIGHTS UNDER ART. 14, 15 & 21?

2.1. No Violation under Article 14

2.2. No Violation under Article 15

2.3. No Violation under Article 21

3. WHETHER THE MENSTRUAL LEAVE ENSURES SOCIOECONOMIC EQUALITY AS

ENSHRINED IN DPSPS?

PRAYER..............................................................................xvi

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LIST OF ABBREVIATION
AIR All India Report

HC High Court

Ass Association

§ Section

I.P.C Indian Penal Code

PC Privy Council

Prop. Property

Co. Company

& And

Hon’ble Honourable

Ltd. Limited

Ibid The same place

Vs Versus

U/s Under Section

S.C.J Supreme Court Journal

TABLE OF AUTHORITIES
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CASE LAWS
1. ADM JABALPUR VS SHIVKANT SHUKLA AIR 1976 SC 1207
2. AJAY JADHAV VS GOVERNMENT OF GOA, AIR 2000 SC 451 : (1999) 9 SCC 4.
3. ALVARO NORONHA FERRIERA V UOI, AIR 1999 SC 1356 : (1999) 4 SCC 408.
4. ASHUTHOSH GUPTA V. STATE OF RAJASTHAN (2002) 4 SCC 34, AIR 2002 SC 1533
5. BADHUA MUKTI MORCHA V. UNION OF INDIA (1984) 3 SCC 161
6. BALCO EMPLOYEES UNION (REGD.) V. UNION OF INDIA & ORS., AIR 2002 SC 350;
7. BHARTIYA DAK TAR MAZDOOR MANCH V UOI, AIR 1987 SC 2342;
8. CHARANJIT LAL CHOWDHURY V. UNION OF INDIA AIR 1951 SC 41,60;
9. CHETRIYA PARDUSHAN MUKTI VS STATE OF UTTAR PRADESH AND ORS 1990 AIR 2006
10. CONFEDERATION OF EX-SERVICEMAN ASSOCIATION V. UNION OF INDIA, (2006) 8 SCC
399, AIR 2006 SC 2945
11. CONSUMER EDUCATION AND RESEARCH CENTRE V. UNION OF INDIA AIR 1995 SCC
922,
12. D.C. BHATIA VS UNION OF INDIA (1995) 1 SCC 104
13. D.S. NAKARA V. UNION OF INDIA (1983) 1 SCC 305
14. DEEP CHAND V. STATE OF UTTAR PRADESH 1959 AIR 648
15. DHIRENDRA CHAMOLI V STATE OF UTTAR PRADESH, (1986)1 SCC 637;
16. DIVISIONAL MANAGER, ARAVALI GOLF CLUB AND ANR. V. CHANDER HASS AND ANR.
2008 (3) 3JT 221;
17. DR. D.C. WADHWA & ORS. V. STATE OF BIHAR & ORS., AIR 1987 SC 579.
18. DWARKADAS VS BOMBAY PORT TRUST (1989) 2 SCC 293
19. EMPLOYEES OF T & F CORPORATION OF INDIA V UOI, AIR 1991 SC 1367;
20. FEDERATION OF BAR ASSNS. V. UNION OF INDIA(2000) 6 SCC 715
21. GARG R.K. VS UNION OF INDIA, AIR 1981 SC 2138
22. GOVERNMENT OF ANDHRA PRADESH AND ORS. V. SMT. P. LAXMI DEVI 2008(2) 8 JT 639
23. GURUVAYUR DEVASWOM MANAGING COMMITTEE V. C.K. RAJAN, & ORS.,1 AIR 2004
SC 561;
24. HAJI BASHEER AHMED AND OTHERS (1976) 1 SCC 671
25. HINDI HITRAKSHAKSAMITI AND ORS V. UNION OF INDIA AND ORS 1990 AIR 851

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26. INDERJEET VS. STATE OF UTTARPRADESH., AIR 1979 SC 1867;

27. J S PUTTASWAMY VS UNION OF INDIA AIR 2018 SC 1841
28. J.P.BANSAL V. STATE OF RAJASTHAN,2003(3) SCALE 154
29. JAIPAL V STATE OF HARYANA, AIR 1988 SC 1504, AT 1509 : (1988) 3 SCC 354.
30. JANATA DAL V. H.S. CHOWDHARY AND ORS. (1992) 4 SCC

31. JASBHAI MOTIBHAI DESAI V. ROSHAN KUMAR, AIR 1976 SC 578

32. K. THIMMAPPA V. CHAIRMAN, CENTRAL BOARD OF DIRECTORS, SBI (2001) 2 SCC 259
33. KARTAR SINGH VS STATE OF PUNJAB, (1994) 3 SCC 569
34. KATHI RANNING RAWAT V.STATE OF SAURASHTRA, AIR 1952 SC 123; PANNALAL
BINJRAJ V. UNION OF INDIA, AIR 1957 SC397
35. KAUSHAL P.N. V. UNION OF INDIA, AIR1978 SC1457
36. KRISHNA CHANDRA V. STATE OF MADHYA PRADESH., AIR 1965 SC 307.
37. KUSHUMLATA V. UNION OF INDIA AND ORS MANU/SC/8225/2006
38. MEWA RAM KANOJA V AIMS, (1989) 2 SCC 235 ;
39. MOHD. SHUJAT ALI VS. UNION OF INDIA 1975 (3) SCC 76
40. MP SINGH V UOI, AIR 1987 SC 485;
41. NANDLAL BAJAJ V. STATE OF PUNJAB, AIR 1981 SC 2041
42. NARINDERJIT SINGH SAHNI VS UNION OF INDIA (2002) 2 SCC 210
43. OCCUPATIONAL HEALTH AND SAFETY ASSOCIATION V. UNION OF INDIA AIR 2014 SC
1469
44. OM KUMAR VS UNION OF INDIA, (2001) 2 SCC 386, AIR 2000 SC 3689
45. P.M. ASHWATHANARAYANA SETTY VS STATE OF KARNATAKA AIR 1989 SC 100.
46. P.RAMACHANDRA RAO V. STATE OF KARNATAKA (2002) 4 SCC 578
47. PARENT OF A STUDENT OF MEDICAL COLLEGE, SHIMLA V STATE OF HIMACHAL
PRADESH AIR 1985 SC 910
48. PEOPLE’S UNION FOR CIVIL LIBERTY V. UNION OF INDIA, 2003 (10) SCALE 967;
49. PK RAMACHANDRA LYER V UOI, AIR 1984 SC 541 : (1984) 2 SCC 141.
50. POONAM V. SUMIT TANWAR AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259
51. RAMSHARAM AUTYANNUPRASI V. UNION OF INDIA (1989) SUPP 1 SCC 251;
52. RANJIT D. UDESHIV. STATE OF MAHARASHTRA, AIR 1965 SC 881;
53. SACHIDANAND PANDEY V. STATE OF WEST BENGAL (1987) 2 SCC 295 P 331
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54. SAYED QUASIM RAZVI VS STATE OF HYDERABAD (1953) 1 SCC 589

55. SHAILENDRA MANI TRIPATHI VS UNION OF INDIA WP(C) 000172 OF 2023
56. SHIV BAHADUR SINGH RAOV. STATE OF U.P., AIR 1953 SC 394;
57. SM ILYAS V INDIAN COUNCIL OF AGRICULTURAL RE-SEARCH, AIR 1993 SC 384
58. STATE (GOVT OF NCT OF DELHI) V. PREM RAJ (2003) 7 SCC 121
59. STATE OF BIHAR VS BIHAR DISTILLERY LTD. AIR 1997 SC 1511
60. STATE OF MADHYA PRADESH V PRAMOD BHARTIYA, AIR 1993 SC 286 : (1993) 1 SCC 539.
61. STATE OF ORISSA VS B.K. BOSE AIR 1962 SC 945
62. STATE OF TAMIL NADU VS ANARTHI AMMAL AIR 1995 SC 2114
63. STATE OF WEST BENGAL VS ANWAR ALI SARKAR, AIR 1952 SC 75
64. SUBHASH KUMAR V. STATE OF BIHAR, AIR 1991 SC 420
65. SUPDT, CENTRAL PRISON, FATEHGARHV. RAM MANOHARLOHIA, AIR 1960 SC 633;
66. SUPREME COURT EMPLOYEES WELFARE ASSOCIATION V. UNION OF INDIA (1989) 4
SCC 187
67. SYED T.A. HAQSHBANDI V. STATE OF JAMMU AND KASHMIR, (2003) 9 SCC 592.
68. TIKA RAMJI CH. V. STATE OF UTTAR PRADESH., AIR 1956 SC 676
69. TRC SCIENTIFIC OFFICERS (CLASS I) ASS V UOI, AIR 1987 SC 490;
70. UNION OF INDIA AND ANOTHER V. DEOKI NANDAN AGGARWAL 1992 SUPP. (1) SCC 323
71. UOI V RG KASHIKAR, AIR 1986 SC 431 : (1986) 1 SCC 458;
72. VILLIANUR IYARKKKAI PADUKAPPU MAIYAM V. UNION OF INDIA (2009) 7 SCC 561
73. VINCENT PARIKURLANGARA V. UNION OF INDIA AIR 1987 SC 990

INTERNATIONAL CASES:
1. HUGHES V. SUPERIOR COURT (1950) 339 US 460
2. WILLIAMSON VS LEE OPTICAL (1954( 384 US 483

BOOKS
1. CONSTITUTIONAL LAW OF INDIA H.M. SEERVAI, 4TH ED. 2023
2. CONSTITUTIONAL LAW OF INDIA J.N. PANDEY, 60TH ED. 2023
3. INDIAN CONSTITUTIONAL LAW M.P. JAIN, 8TH ED. 2018

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WEBSITES REFERRED
1. MANUPATRA
2. SSC ONLINE
3. JSTOR
4. Research Gate

STATEMENT OF JURISDICTION

“The petition is filed in front of this Hon’ble Supreme Court of Sovereign Indus under Art. 32 of the
Indusian Constitution.” The council most humbly would like to submit that the current petition filed by the
appellant is not maintainable under this Hon’ble Court.

This Article states that:

“Right to Constitutional Remedies

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).

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(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.”

Issues Raised

ISSUE 1

WHETHER PRESENT PUBLIC INTEREST LITIGATION IS MAINTAINABLE OR NOT?

ISSUE 2

WHETHER NON-RECOGNITION OF MENSTRUAL LEAVE TO GIRLS AND WOMEN'S OF ALL

AGE IS VIOLATIVE OF THEIR FUNDAMENTAL RIGHTS UNDER ART. 14, 15 & 21?

ISSUE 3
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WHETHER THE MENSTRUAL LEAVE ENSURES SOCIOECONOMIC EQUALITY ASENSHRINED

IN DPSPS?

STATEMENT OF FACTS

 About Indus:
Indus is a diverse country in South Asia with a Constitutional republic government and thousands of ethnic
groups speaking different languages. With one-sixth of the world's population, Indus is the second most
populous country after China. The Constitution of Indus guarantees fundamental rights to all its citizens,
irrespective of their caste, religion, or gender, and aims to achieve the goals of Justice, Liberty, Equality,
Fraternity, and Dignity, as set out in the Preamble to the Constitution.
 Government Initiations:
The government of Indus ensures that no person is denied equality before the law or the equal protection of the
laws within the country.
 Menstruation Meaning and Definition :
Menstruation is a natural process that every woman experiences differently. Some women may have minimal
physical or emotional symptoms, while others may have more severe symptoms that affect their daily activities.
It's important to raise awareness about menstruation and its effects so that women can have access to the
necessary resources and support to manage their menstrual cycles.
 About Emily Cooper
Emily Cooper, a resident of (Indus) was an Engineer by profession and she was working at an MNC named

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Dripkart, got her period on 21st February 2023 for which she did not come to her office for 3 days. She was well
aware about the fact that dripkart never gave paid period leave to their female employees. She got to know that
Poa, a state in Indus, granted paid period leave to their employees and after hearing this, Emily Cooper posted
on her social media handle “Women are personified as goddess in our country but the said goddess is deprived
of even a single day leave on her periods, which breaks her both physically and mentally. The Central
government must pass an Act to give paid period leaves to every women at their respective work place”. This
post was on her private social media account but it was shared by different activists on other social media
platforms across Indus.

 About Dripkart

A software development Company, that designs and develop custom software applications,
frameworks, and tools that helps to solve problems or achieve a specific outcome. She was working as
a software developer with an annual package of INR 16 Lakhs. Dripkart was funded by the Central
Government for most of their projects and the central government holds a substantial interest in the
company.

 Emily’s Role in Dripkart:

As a software developer she was involved in researching, designing, implementing, managing

software programs, testing and evaluating new programs, identifying areas for modification in existing
programs and subsequently developing these modifications and writing and implementing efficient
code.

 Status in Poa and Emilys Message

She got to know that Poa, a state in Indus, granted paid period leave to their employees and after
hearing this, Emily Cooper posted on her social media handle “Women are personified as goddess in
our country but the said goddess is deprived of even a single day leave on her periods, which breaks
her both physically and mentally. The Central government must pass an Act to give paid period leaves
to every women at their respective work place”. This post was on her private social media account but
it was shared by different activists on other social media platforms across Indus.

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 Women Rights Sangathan:

Women Rights Sangathan (hereinafter referred to as WRS), an NGO which conducts workshops,
facilitates discussions, provides legal advice and pro bono legal services to them who might encounter
cases of sexual violence at workplace and has been working since 2008, to prevent gender and sex-
based violence against women. WRS moved to the Hon’ble Supreme Court of Indus through a Public
Interest Litigation (hereinafter referred to as PIL) for the constitutional recognition of Right to
Menstrual Leave as Fundamental Right under Article 14, Article 15 and Article 21. The NGO is of the
view that women should be granted paid menstrual leave at her workplace. This would benefit female
employees by allowing them to manage their menstrual symptoms without compromising their
productivity or workplace attendance. It would also promote gender equality by recognizing and
addressing the unique health needs of female employees in the workplace. Furthermore, this would
promote workplace diversity and inclusion by acknowledging the challenges that women face due to
menstrual symptoms, which can be more severe for some women than others. Providing menstrual
leave would create a more supportive and inclusive workplace environment, which could increase
employee satisfaction and productivity.

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SUMMARY OF ARGUMENTS

1. Whether the present Public Interest Litigation is maintainable or not?

The council for the respondent argues that the current Public Interest Litigation is not maintainable in the
present circumstances, under this Hon’ble court. The petitioner, Women Rights Sangathan, a non-
government organization, has no sufficient interest whatsoever. They are not entitled to appropriate relief
under the provisions of Article 32 of the Constitution of India. Public Interest Litigation should not be
"publicity interest litigation" or “private interest litigation” or “politics interest litigation”. The court
should not allow its process to be abused. The petitioner has to show their sufficient interest in the present
petition. A Public Interest Litigation can only be filed by a person who has a genuine interest in the matter

2. Whether non-recognition of menstrual leave to girls and women's of all age is violative of their
Fundamental Rights under Art. 14, 15 & 21?
The council for respondents argues that the non-recognition of menstrual leave is not a violation of
fundamental rights under Articles 14, 15 & 21. Article 14 states that the state shall not deny any person
equality before the law and equal protection of laws within the territory of India. However, there is no
inequality that arises from non-implementing menstrual leave policy that would cause any injustice to
women's society. The legislature has the right to decide what should be the cut-off point for making
classifications for legislation. The classification must be founded on an intelligible differentia that
distinguishes persons grouped together from others left out of the group. The differentia must have a
rational nexus with the object sought to be achieved by the statute in question. The council believes that
the non-recognition of menstrual leave does not violate Article 14.

3. Whether the menstrual leave ensures socioeconomic equality as enshrined in DPSPs?

The council humbly submits that mandating paid menstrual leave exclusively for female employees may
unintentionally discriminate against non-menstruating employees, such as men or post-menopausal
women. Such discrimination could create disparities in the workplace and undermine principles of

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equality, ultimately leading to tensions and grievances among employees. Therefore, the aim of
socioeconomic equality cannot be achieved if discrimination takes place. Equal pay for equal work is a
fundamental right that has been enshrined in Articles of Fundamental Rights and Directive Principal of
State Policy. The Supreme Court has deduced the principle of "equal pay for equal work" from Arts. 14,
16 and 39(d) and the Preamble to the Constitution. The parameters for invoking the principle of equal pay
for equal work include the nature of the work and common employer. Discrimination based on gender
would violate the principles of equality that are fundamental to our society. Therefore, it is crucial that
equal pay for equal work is maintained, and any form of discrimination is prevented.

ARGUMENTS ADVANCED
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I. WHETHER THE PRESENT PUBLIC INTEREST LITIGATION MAINTAINABLE OR NOT?

The council for the respondent most humbly submits that the current Public Interest Litigation is
not maintainable in the present circumstances, under this Hon’ble court.

A. In accordance to the fact sheet, the Petition was filed by Women Rights Sangathan, 2 A
Non- non-government organization before the Hon’ble Supreme Court of India praying for
paid menstrual leave policy in India.

B. The petitioners are entitled to appropriate relief under the provisions of Article 32 3 of the
Constitution of India, provided it is proved to the satisfaction of the Hon‟ble Court that the
petitioners have a sufficient interest in the matter and that their Fundamental Rights have
been violated4.

C. The Hon’ble Court has laid down a chain of notable decisions with all emphasis at their
command about the importance and significance of this newly developed doctrine of
Public Interest Litigation, it has also hastened to sound a red alert and a note of severe
warning that courts should not allow their process to be abused5.

D. Justice Khalid in Sachidanand Pandey v. State of West Bengal6 said “today public spirited
litigants rush to courts to file cases in profusion under this attractive name. They must
inspire confidence in courts and among the public. They must be above suspicion. I will be
second to none to help when such help is required. But this does not mean that the doors of
this court are always open for anyone to walk in. It is necessary to have some self-imposed
restraint on public interest litigants” It was also held in the same case 7 that, "If Courts do
not restrict

2
Moot Preposition ¶12
3
Constitution of Indus PariMateria to Constitution of India (hereafter referred to as Constitution of India)
4
Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259
5
Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC
6
(1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987), (1987) 2 SCR 223
7
Ibid
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the free flow of such cases in the name of public interest litigation, the traditional litigation will
suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves
administrative and executive functions". In the instant matter, the Non-Government Organisation,
Women Rights Sangathan has no sufficient Interest whatsoever. The petitioner‟s interest and the
subject matter of the complaint clearly do not coincide.
E. There must be real and genuine public interest involved in the litigation and not merely an
adventure of knight errant borne out of wishful thinking. Public Interest Litigation which has now
come to occupy an important field in the administration of law should not be "publicity interest

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litigation" or “private interest litigation” or “politics interest litigation”. 8The courts of justice
should not be allowed to be polluted by unscrupulous litigants by resorting to an extra ordinary
jurisdiction. Public interest litigation is a weapon which has to be used with great care and
circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of
public interest an ugly private malice, vested interest and/or publicity seeking. It is to be used as an
effective weapon in the armory of law for delivering social justice to the citizens. 9
F. It has been said that Public Interest Legislation is a weapon that has to be used with great care and
circumspection.10 Elsewhere it has been added that public interest legislation‟ is an instrument for
the administration of justice to be used properly in proper cases. 11 Further, it has been clarified
that, while it is the duty of this court to enforce fundamental rights, it is also the duty of the court
to ensure that this weapon under Article 32 should not be misused or permitted to be misused
creating a bottleneck in the superior court preventing other genuine violation of Fundamental
Rights being considered by the court.12 The courts have also noted that on account of unwanted
proceedings under frivolous public interest legislation a lot of time gets wasted which could
otherwise has been spent for the disposal of cases of genuine litigants.13

8
ibid
9
KushumLata v. Union Of India And Ors MANU/SC/8225/2006
10
Parent of a student of Medical College, Shimla v State of Himachal Pradesh AIR 1985 SC 910
11
Ramsharam Autyannuprasi v. Union of India (1989) Supp 1 SCC 251; Badhua Mukti Morcha v. Union of India
(1984) 3 SCC 161
12
Chetriya Pardushan Mukti vs State of Uttar Pradesh and Ors 1990 AIR 2006
13
ibid
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1.1 Absenteeism of Locus Standi:

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1.1.1 Supreme Court in Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors., 14 has
observed that any member of public having „sufficient interest‟ may maintain petition by way of
Public Interest Litigation provided there is an injury to a disadvantaged section of the population
for whom access to legal justice system is difficult. 15 The petitioner in the present case has to show
their sufficient interest in the present petition. Women Rights Sangathan is just a voluntary
organisation and does not necessarily have a genuine interest in this matter. It is a settled principle
that a Public Interest Litigation can only be filed by a person who has a genuine interest in the
matter.16 The Supreme Court in Janata Dal v. H. S. Chowdhary,17 has observed that the process of
Public Interest Litigation has been abused by persons who do not have any interest or concern with
the issue except for some oblique consideration. The Court went on saying that such suits should
not be entertained by the courts as it does not fall under the category of public interest litigation. 18
1.1.2 The Supreme Court has said that if the executive is not carrying out any duty laid upon it by the
constitution or the law, the court can certainly require the executive to carry out such duty and this
is precisely what the court does when it entertains public interest legislation. But at the same time
the court cannot unsurp the functions assigned to the executive and the legislature under the
constitution and it cannot even indirectly require the executive to introduce a particular legislation
or the legislature to pass it or assume to itself a supervisory role over the law making activities of
the executive and the legislature.19

14
AIR 2004 SC 561; B. P. Banerjee, Writ Remedies, (4th ed. rep. 2008)).
15
BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; Dr. D.C. Wadhwa & Ors. v. State of Bihar
& Ors., AIR 1987 SC 579.
16
Subhash Kumar v. State of Bihar, AIR 1991 SC 420
17
Supra at 4
18
Supra at 8
19
Supra at 9
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1.1.3 It has been clarified that in context of locus standi an applicant may ordinarily fall in any of these
categories: (i) „persons aggreived‟ (ii) „stranger‟ (iii) „busybody or meddlesome interloper‟.
Persons in the last category usually interfere in things that do not concern them. They masquerade
as crusaders for justice. They pretend to act in the name of pro bono public, though they have no
interest of the public or even of their own to protect.20
1.1.4 Thus in the present case if the Women Rights Sangathan fails to prove sufficient and genuine
interest of their organization in the writ petition than the petition is not maintainable before the
court.

2.1 No violation of fundamental rights

2.1.1 The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of fundamental rights
conferred by Part III of the Constitution. Where there is no question of the enforcement of a Fundamental
right, Article 32 has no application. 21 In the present case there is neither a violation of fundamental rights of
the petitioner nor of the people on behalf of whom this particular petition is filed.

2.1.2 Relying on BALCO Employees’ Union (Regd.) v. Union of India 22, the court has again reminded that only
the only ground in which a person can maintain Public Interest litigation is where there has been an element
of violation of Article 21 on human rights or where the litigation has been initiated for the benefit of the
poor and the underprivileged who are unable to come to the court due to some disadvantage. 23

2.1.3 Article 32 of the Constitution of India guarantees enforcement of fundamental rights. It is well- settled that
the jurisdiction conferred on the Supreme Court under Article 32 is an important and integral part of the
Indian Constitution but violation of a fundamental right is the sine qua non for seeking enforcement of those
rights by the Supreme Court. In order to establish the violation of a fundamental right, the Court has to
consider the direct and inevitable consequences of the action which is sought to be remedied or the
guarantee of which is sought to be enforced.24

2.1.4 Also, the Directive Principles of State Policy are not enforceable. Article 37 read with the
case Deep Chand v. State of Uttar Pradesh 25 it was held that the directive principles of the
State Policy, which by Article 37 are expressly made unenforceable by a Court, cannot
override the provisions found in Part III which, notwithstanding other provisions, are
expressly made enforceable by appropriate Writs, Orders or directions under Article 32.

2.1.5 It is submitted by the counsel for respondent that there is no violation of fundamental
20
Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and others (1976) 1 SCC 671
] 19
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rights and hence there is no way of approaching the court on under Article 32 of the
Constitution of India which provides remedies in terms of violation.

21
Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41,60; Federation of Bar Assns. v. Union of India(2000) 6 SCC
715
22
Supra note 14
23
Villianur Iyarkkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561
24
Hindi HitrakshakSamiti And Ors v. Union Of India And Ors 1990 AIR 851
25
1959 AIR 648
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3.1 Judiciary has no say in policy decisions of the legislative authority

3.1.1 In such a petition, the Court cannot interfere in matters of legislative policy. 26 The Court must maintain
judicial restraint in matters relating to the legislative or executive domain. 27 The policy of a law may be
gathered from the Preamble,28 read in the light of the circumstances in which it was passed, or its object, 29
with its provisions read together.30

3.1.2 In the case of State (Govt of NCT of Delhi) v. Prem Raj 31, the Court held that “Where the words are clear,
there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is
no scope for the court to innovate or to take upon itself the task of amending or altering the statutory
provisions. In that situation the judge should not proclaim that they are playing the role of lawmaker merely
for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates
adjudication from legislation. That line should not be crossed or erased.” 32 “Moreover, mere possibility of
abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute
unconstitutional.” 33

3.1.3 The Supreme Court under Article 32 is empowered to issue any of the five prerogative writs or any other
order for the enforcement of rights guaranteed under Part III of the Constitution. It has been held that even
though the recourse to remedy under Article 32 is extraordinary in nature, the ordinary rules of procedure
will continue to apply and there is nothing in the Constitution which merits a different stance 34,

3.1.4 Mr. A.S. Chandhiok, learned Additional Solicitor General, submitted that under the Constitution it is only
the Legislature which has the power to make law and amend the law and the Court cannot in exercise of its
judicial power encroach into the field of legislation. In support of this submission, he relied on the decision
of a seven-Judge Bench of this Court in P.Ramachandra Rao v. State of Karnataka35 in which this Court
has recognized the limits of judicial power in a constitutional democracy. He also cited the decision in
Union of India and Another v. Deoki Nandan Aggarwal36 for the proposition that courts cannot rewrite,
recast or reframe the legislation for the very good reason that it has no power to legislate.

26
ibid
27
Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3JT 221; Government of Andhra
Pradesh and Ors. v. Smt. P. Laxmi Devi 2008(2) 8 JT 639
28
Kaushal P.N. v. Union of India, AIR1978 SC1457
29
Kathi Ranning Rawat v.State of Saurashtra, AIR 1952 SC 123; Pannalal Binjraj v. Union of India, AIR 1957 SC397
30
Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676
31
(2003) 7 SCC 121
32
J.P.Bansal v. State of Rajasthan,2003(3) SCALE 154
33
People’s Union for Civil Liberty v. Union of India, 2003 (10) SCALE 967; Syed T.A. Haqshbandi v. State of Jammu and
Kashmir, (2003) 9 SCC 592.
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3.1.5 Further, it was held in Supreme Court Employees Welfare Association v. Union of India 37 that the court
cannot direct the legislature and delegated authority to make any particular law. It is well-settled that
judicial review, in order to enforce a fundamental right, is permissible of administrate, legislative and
governmental action or non-action, and that the rights of the citizens of this country are to be judged by the
judiciary and judicial forums and not by the administrators or executives. But it is equally true that citizens
of India are not to be governed by the Judges or judiciary. If the governance is illegal or violative of rights
and obligations, other questions may arise out whether, as mentioned hereinbefore, it has to be a policy
decision by the Government or the authority and thereafter enforcement of that policy, the Court should not
be, and we hope would not be an appropriate forum for decision.38

3.1.6 Judgment of the seven-Judge Bench in P. RamachandraRao v. State of Karnataka:39“Courts can declare the
law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench
upon in the field of legislation properly meant for the legislature.”

3.1.7 The Latin maxim of ubi jus ibi remedium would work here as there is absolutely no legal wrong, thus there
can be no question of any remedy. It is submitted that looking to judicial precedent, even after the matter
has been posted for final hearing, The court may hear counsel on the issue of maintainability of the petition
and if it is found to be non-maintainable, then the same is liable to be dismissed. 39

3.1.8 Thus it is submitted, that the petitioner had no requisite locus standi and sufficient interest in the present
case, hence the petition is not maintainable and should be dismissed.

II. IS NON-RECOGNITION OF MENSTRUAL LEAVE TO GIRLS AND WOMEN'S OF ALL

AGE IS VIOLATIVE OF THEIR FUNDAMENTAL RIGHTS UNDER ART. 14, 15 & 21?

The council for respondents humbly submits before the Hon’ble Supreme Court that the non-recognition
of menstrual leave is in no circumstances violative of the fundamental rights of Articles 14, 15 & 21. The
council will be dealing it under three sections: [1.1] No violation of A.14, [1.2] No violation of A.15, [1.3]
No violation of A.21

34
Supra
35
(2002) 4 SCC 578
36
1992 Supp. (1) SCC 323
37
(1989) 4 SCC 187
38
Supra note 23
39
Supra note 34
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1.1 No violation of Article 14:

1.1.1 Article 14 states that, “The state shall not deny to any person equality before the law and equal
protection of the laws within the territory of India”. Article 14 confers a personal right by enacting
a prohibition; the only question which has to be determined when a law is said to violate the right
is to inquire whether the prohibition has been violated.40
1.1.2 In the present case, there isn’t even slight inequality that springs from non-implementing menstrual
leave policy would cause any injustice to the women’s society. It is for the legislature to decide
what should be the cut off point for making classification for legislation and whether a section of
the people should be protected by law. The Legislature has a lot of latitude for making
classification keeping in view the attendant facts and circumstances. The safeguard provided by
Article 14 may be invoked only if the classification has been made on grounds which are not at all
relevant to the object of the statute. The court will not question the validity of the legislation on the
legislation on the ground of lack of legislative wisdom.41
1.1.3 Article 14 of the Indian constitution talks about Equality. Article 14 states that “ the state shall not
deny any person equality before law and equal protection of laws within the territory of India ” .
In Mohd. Shujat Ali vs. Union of India 42 the Hon'ble Supreme Court observed that Article 14
ensures to every person equality before law and equal protection of the laws.
1.1.4 Equality before law : It is a concept implying absence of any special privilege by reason of birth ,
creed , sex and the like in favour of any individual. Dr Jennings put it : “ Equality before law
means that among equals the law should be equal and should be equally administered, that like
should be treated alike. It means menstruating women are treated equally not men and women
should treated equally . Equality consists of the same treatment of similar persons . Here men and
women are different persons. As men doesn’t menstruate they didn’t come in category of
menstruating persons. All menstruating womens are similar persons and non- recognition of
menstrual policy would treat them equally ,there is no violation of equality .43
1.1.5 It was held that when a law is challenged as violation of Article 14, it is necessary in the first place
to ascertain the policy underlying the statute and the object intended to be achieved by the

40
Sayed Quasim Razvi vs State of Hyderabad (1953) 1 SCC 589
41
D.C. Bhatia vs Union Of India (1995) 1 SCC 104
42
1975 (3) SCC 76
43
Constitutional Law JN Pandey 60th Ed.
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legislation.44 A law does not become invalid because it is not all-embracing 45 and that it is limited
as at the territory, persons, or objects to which it is applied or the evils to be remedied 46.The
presumption is always in the favor of the Constitutionality of an enactment, since it must be
assumed that the Legislature understands and correctly appreciates the needs of its own people,
that its laws are directed to problems made by manifest by experience and its discrimination are

based on adequate grounds.47 When a statute is alleged to be violative of Article 14 of the

Constitution, the Court has to decide whether the statute is so arbitrary or unreasonable that it must
be struck down. The Constitutional validity of a statute cannot be challenged as discriminatory by
comparing it with another statute of similar subject which derives its authority from another
source.48Article 14 cannot be construed as a charter for judicial review of state action, to call upon
the state to account for its action in its manifold activities by stating reasons for such actions. 49
1.1.6 It is submitted that in order to pass the test of permissible classification two conditions must be
fulfilled namely: the classification must be founded on an intelligible differentia which
distinguishes persons grouped together from others left out of the group; and the differentia must
have a rational nexus with the object sought to be achieved by the statute in question. It is
important to note that although Article 14 forbids class legislation, it does not forbid classification
which rests upon reasonable grounds of distinction. 50If the legislature takes care to reasonable
classify persons for legislative purposes and if it deals equally with all persons belonging to a
„well defined class‟, it is not open to the charge of denial of equal protection on the ground that
the law does not apply to other persons51.
1.1.7 In K. Thimmappa v. Chairman, Central Board of Directors, SBI 52, held that Article 14 prohibits
class legislation and not reasonable classification for the purpose of legislation. If the rule-making
authority takes care to reasonably classify persons for a particular purpose and if it deals equally
with all persons belonging to a well-defined class then it would not be open to the charge of
discrimination. But to pass the test of permissible classification two conditions must be fulfilled:

44
Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34, AIR 2002 SC 1533
45
Hughes v. Superior Court (1950) 339 US 460
46
Williamson vs Lee Optical (1954( 384 US 483
47
Garg R.K. vs Union Of India, AIR 1981 SC 2138
48
State of Tamil Nadu vs Anarthi Ammal AIR 1995 SC 2114
49
Dwarkadas vs Bombay Port Trust (1989) 2 SCC 293
50
State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75
51
State of Orissa vs B.K. Bose AIR 1962 SC 945
52
(2001) 2 SCC 259
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(a) that the classification must be founded on an intelligible differentia which distinguishes persons
or things which are grouped together from others left out of the group; and

(b) that the differentia must have a rational relation to the object sought to be achieved by the
statute in question. Non recognition of policy passed the both tests :

Test 1 Intelligible differentia: A Constitutional Bench of the Hon'ble Supreme Court in D.S.
Nakara v. Union of India53, held that the classification must be based on an intelligible differentia,
which distinguishes persons or things that are grouped together from others left out of the group. In
the case of menstrual leave, the biological difference between menstruating and non-menstruating
individuals constitutes a valid intelligible differentia.

Test 2 rational relation to object : In current situation the object is paid menstrual leave policy
here the relation with the object is rational. If the recognition of menstrual policy treat
menstruating women equally then also non recognition of menstrual policy treat them equally
because the circumstances are same for menstruating womens . Equality consists of the same
treatment of similar persons. Menstruating womens are similar persons and recognition and non
recognition of menstrual policy treat them equally .

2.1 No violation of Article 15 : Article 15 of Indian constitution talks about “No discrimination on
Grounds of Religion, Race, caste, sex etc.
2.1.1 No Violation of Gender Equality [Article 15(1) ] : Article 15(1) prohibits discrimination on
grounds of sex among other factors. However, the absence of menstrual leave does not amount to
discrimination against women. The non recognition of policy does not treat women unfavourably
compared to men but rather treats all employees equally in terms of leave entitlements. Therefore,
it does not contravene the spirit of gender equality enshrined in Article 15(1).
2.1.2 Article 15(3) : Article 15(3) of Indian constitution states that “ Noting in this article shall prevent
54
the state from making any special provisions for women and children ”
Article 15(3) of the Indian Constitution allows the state to make special provisions for women and
children, but it does not mandate the recognition of menstrual leave as a fundamental right. State is
not bound to make such policies. Employers have the discretion to design policies that address the

53
(1983) 1 SCC 305
54
Constitutional Law of India, 4th ed. H.M Seervai 2015
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diverse needs of their employees while promoting gender equality and non-discrimination in the
workplace. Therefore, the absence of menstrual leave does not violate Article 15(3) .
2.1.3 Disincentive for Employers: A three-judge Bench led by Chief Justice of India D.Y. Chandrachud
in the case of Shailendra Mani Tripathi vs Union Of India 55 on 24 February, 2023 held that there
are different “dimensions” to menstrual pain leave, which though being a biological process, may
also act as a “disincentive” for employers from engaging women in their establishments. The
provision of menstrual leave raises a number of employment issues in India, particularly with
respect to discrimination, productivity, and costs.
2.1.4 One of the primary concerns with menstrual leave is that it could lead to discrimination against
women in hiring or promotion decisions. Employers may view women as less productive or
reliable due to their menstrual cycles, which could lead to them being passed over for job
opportunities or promotions. This could result in a gender pay gap and contribute to gender
inequality in the workplace.
2.1.5 Another issue with menstrual leave is its potential impact on productivity. Employers may worry
that menstrual leave could disrupt work schedules or create staffing shortages, leading to a
decrease in productivity. However, studies have shown that allowing women to take menstrual
leave can actually increase productivity by reducing absenteeism and improving employee morale.
Finally, there is a cost associated with providing menstrual leave. Employers may worry that they
will have to bear the cost of hiring replacement workers or paying overtime to cover the absence of
women on menstrual leave. However, the cost of menstrual leave can be offset by the benefits of
improved employee morale, reduced absenteeism, and increased productivity.
2.1.6 Therefore, while the provision of menstrual leave raises a number of employment issues in India, it
is an important policy issue that can contribute to gender equality and improve workplace
productivity. It is important for employers and policymakers to carefully consider these issues and
establish clear guidelines for the provision of menstrual leave to ensure that it is implemented in a
way that is fair and equitable for all employees.
3 No violation of Article 21 :
3.1 Article 21 of the Indian constitution states “ no person shall be deprived of his life or personal liberty
except according to procedure established by law ” Right to health :- Article 21 guarantees the right to
life and personal liberty, which includes the right to health and dignity.56
55
Shailendra Mani Tripathi vs Union Of India WP(C) 000172 of 2023
56
Consumer Education and Research Centre v. Union of India AIR 1995 SCC 922, Vincent Parikurlangara v. Union of India
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3.2 On account of liberal interpretation of the words “life” and “liberty” in Article 21 of the Constitution of India,
the said Article has now come to be invoked almost as a residuary right, even to the extent which the founding
father of the Constitution never dreamt of.57
3.3 The Supreme Court has held that the lack of perfection in a legislative measure does not necessarily imply its
unconstitutionality.58Mere allegation of an Act being discriminatory is not sufficient for the Supreme Court to
strike down legislation as ultra vires, some constitutional infirmity has to be shown and established. 59
3.4 A law is a valid law if it is enacted by a competent legislature and if it does not violate any of the other

Fundamental Rights declared by the Constitution like Article 14 60 or Article 19.61 Individual rights cannot be
absolute in a welfare state. It has to be subservient to the Rights of the public at large. 62The right of life and

liberty so guaranteed under Article 21 is also subject to the rule of proportionality. 63 Liberty is the right of doing
an act which the law permits. 64Liberty is confined and controlled by law as it is regulated freedom. It is not an
abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of
representative and responsible Government which has been evolved. Liberty is itself the gift of law and may by
law be forfeited or abridged.65
3.5 While menstrual health is important, it is not the sole determinant of women's health and dignity. The absence
of menstrual leave does not deprive women of access to healthcare or compromise their dignity. Women have
the flexibility to use other types of leave or accommodations to manage their menstrual symptoms, thereby
safeguarding their right to health and dignity.
3.6 In Occupational Health and Safety Association v. Union of India 66, Supreme Court held -Right to health i.e.,
right to live in a clean, hygienic and safe environment is a right flowing from Article 21. Clean surroundings
lead to healthy body and healthy mind. Right to live with human dignity enshrined in Article 21 derives its life
from the Directive Principles of State Policy, particularly clauses (e) and (f) of Articles 39, 41 and 42.
Protection of health and strength of workers and just and humane conditions of work included in these article
are minimum requirements which must exist to enable a person to live with human dignity. Every State has an

AIR 1987 SC 990

57
Narinderjit Singh Sahni vs Union Of India (2002) 2 SCC 210
58
P.M. Ashwathanarayana Setty vs State of Karnataka AIR 1989 SC 100.
59
State Of Bihar vs Bihar Distillery Ltd. AIR 1997 SC 1511
60
Shiv Bahadur Singh Raov. State of U.P., AIR 1953 SC 394; NandLal Bajaj v. State of Punjab, AIR 1981 SC 2041
61
Inderjeetv. State of UttarPradesh., AIR 1979 SC 1867; Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881; Supdt,
Central Prison, Fatehgarhv. Ram ManoharLohia, AIR 1960 SC 633; Krishna Chandra v. State of Madhya Pradesh., AIR 1965
SC 307.
62
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399, AIR 2006 SC 2945
63
Om Kumar vs Union Of India, (2001) 2 SCC 386, AIR 2000 SC 3689
64
Kartar Singh vs State Of Punjab, (1994) 3 SCC 569
65
ADM Jabalpur vs Shivkant Shukla AIR 1976 SC 1207
66
AIR 2014 SC 1469
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obligation and duty to provide at least the minimum condition ensuring human dignity. State is already
providing maternity leave, childcare facilities, and women-centric healthcare initiatives, state is not oblige to
provide menstrual leave .
3.7 Right to privacy:- In the case of J S puttaswamy vs union of India 67 (2017) nine judges bench of the Supreme
Court reaffirmed that the right to privacy was a fundamental right derived from life and personal liberty under
Article 21. A menstrual leave policy might potentially violate the right to privacy if it requires employees to
disclose personal health information related to their menstrual cycles in order to qualify for the leave. Requiring
employees to divulge details about their menstrual symptoms or conditions could be considered an invasion of
privacy, as it involves sharing intimate medical information with their employer. Additionally, if the policy
leads to the tracking or monitoring of employees' menstrual cycles, it could further infringe on their right to
privacy by intruding into their personal health matters.

67
AIR 2018 SC 1841
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III. WHETHER THE MENSTRUAL LEAVE ENSURE SOCIOECONOMIC EQUALITY AS ENSHRINED

IN DPSPS?

The council for respondent humbly submits before the honourable Supreme Court that the menstrual leave
doesn’t ensure socioeconomic equality as enshrined in the Directive principles of state policy .

Directive Principles of State Policy (DPSP) aim at ensuring socio-economic justice to the people and
establishing India as a Welfare State. Directive Principles of State Policy are in the form of
instructions/guidelines to the governments at the centre as well as states. Though these principles are non-
justiciable, they are fundamental in the govern-ance of the country

3.1.1 Potential Discrimination Against Non-Menstruating Employees: Respondent humbly submits that
Mandating paid menstrual leave exclusively for female employees may inadvertently discriminate
against non-menstruating employees, such as men or post-menopausal women. Providing special
leave benefits based on gender could create disparities in the workplace and undermine principles
of equality. Such discrimination could lead to tensions and grievances among employees,
ultimately detracting from the inclusive and equitable work environment that organizations strive
to maintain.

3.1.2 Due to discrimination aim of socioeconomic equality cannot be achieved: As Directive principles
of state policy and fundamental rights are complementary to each other, the goal of one cannot be
achieved without other . If there is violations of fundamental rights then aim of Directive
principles to ensure socio economic equality cannot be achieved.

3.1.2.1 Aim of equal pay for equal work : Equal Pay for Equal Work has been mentioned in our Articles
of Fundamental Rights (Article 14 & Article 15 ) and Directive Principal of State Policy ( Article
39d ) . To achieve the goal of “ equal pay for equal work ” fundamental rights under Article 14 &
Article 15 cannot be violated. Article 14 - Equality before law - This article ensures that all
individuals are treated equally before the law and are entitled to equal protection of the laws. In the
context of equal pay for equal work, Article 14 prohibits discrimination on grounds of gender,
among other factors, ensuring that all employees, regardless of gender, are entitled to equal pay for

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performing the same work. If the other employees is getting same paid without working then there
is discrimination with other employees.

3.1.2.2 Article 15 : Article 15 prohibits discrimination on grounds of sex among other factors. If the
menstrual policy were to reinforce stereotypes or perpetuate gender-based discrimination, it would
violate Article 15. Article 39d - The state shall, in particular, directs its policy towards securing –
that there is equal pay for equal work for both men and women. It was held in Randhir Singh case
by the Supreme Court that, “It is true that the Principle of ‘equal pay for equal work’ is not
expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional
goal. Thus, the framers of the Constitution incorporated this provision to wipe out any
discrimination made against women or men in regard to the terms of pay. But in the present case if
the women get paid menstrual leave then there is discrimination between men and women .

3.1.2.3 The Supreme Court has deduced the principle of "equal pay for equal work" from Arts. 14, 16 and
39(d) and the Preamble to the Constitution. No such principle is expressly embodied in the
Constitution but the principle has now matured in a Fundamental Right. As the Supreme Court has
explained in State of Madhya Pradesh v. Pramod Bhartiya, 68the doctrine of "equal pay for equal
work" is implicit in the doctrine of equality enshrined in Art. 14, and flows from it. The rule is as
much a part of Art. 14 as it is of Art. 16(1). The doctrine is also stated in Art. 39(d), a directive
principle, which ordains the State to direct its policy towards securing equal pay for equal work for
both men and women.

3.1.2.4 The Court has enunciated the doctrine as follows:69

"The doctrine of equal work for equal pay would apply on the premise of similar work but it does
not mean that there should be complete identity in all respects. If the two classes of persons do
some work under the same employer, with similar responsibility, under similar working
conditions, the doctrine of 'equal work equal pay', would apply and it would not be open to the
State to discriminate one class with the other in paying ." But it cannot be said that being a
Directive Principle, it is not enforceable in a Court of law because it is also a part of Art. 14. The

68
State of Madhya Pradesh v Pramod Bhartiya, AIR 1993 SC 286 : (1993) 1 SCC 539.
69
Jaipal v State of Haryana, AIR 1988 SC 1504, at 1509 : (1988) 3 SCC 354.
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Fundamental Rights and Directive Principles are not supposed to be exclusionary of each other;
they are complimentary to each other.

3.1.2.5 The parameters for invoking the principle of equal pay for equal work include, inter alia, the
nature of the work and common employer 70.The principle may properly be applied to the cases of
unequal scales of pay based on no classification or irrational classification though those drawing

the different scales of pay do identical work under the same employer 71. Thus, where all relevant
considerations are the same, persons holding identical posts and discharging similar duties should
not be treated differentially.

3.1.2.6 Employees under one and the same employer holding the same rank, performing similar functions
and discharging similar duties and responsibilities must also be given similar scales of pay. The
Court has emphasized that this is not an abstract doctrine but one of substance. Though not
declared expressly in the Constitution, it is certainly a constitutional goal. The principle has been
applied in a large number of cases. 72Article 14, as already stated, permits reasonable classification
which means that the classification is to be based on an intelligible basis which distinguishes
persons or things grouped together from those that are left out of the group and that differentia
must have a rational nexus with the object to be achieved by the differentia made. In other words,
there ought to be causal connection between the basis of classification and the object of
classification. The doctrine of equal pay for equal work applies in case of unequal scales of pay
based on no classification or irrational classification, though those drawing the different scales of
pay do identical work under the same employer.

3.1.2.7 The Court pointed out that where two classes of employees perform identical or similar duties and
carry out the same functions with the same measure of responsibility having the same academic
qualifications, they would be entitled to equal pay. "Principle of equal pay for equal work is
applicable among equals. It cannot be applied to unequals". The Court also clarified another

70
Alvaro Noronha Ferriera v UOI, AIR 1999 SC 1356 : (1999) 4 SCC 408.
71
PK Ramachandra lyer v UOI, AIR 1984 SC 541 : (1984) 2 SCC 141.
72
Dhirendra Chamoli v State of Uttar Pradesh, (1986)1 SCC 637; UOI v RG Kashikar, AIR 1986
SC 431 : (1986) 1 SCC 458; TRC Scientific Officers (Class I) Ass v UOI, AIR 1987 SC 490;
Bhartiya Dak Tar Mazdoor Manch v UOI, AIR 1987 SC 2342; MP Singh v UOI, AIR 1987 SC
485; Mewa Ram Kanoja v AIMS, (1989) 2 SCC 235 : AIR 1989 SC 1256; Employees of T & F Corporation of India v UOI,
AIR 1991 SC 1367; SM Ilyas v Indian Council of Agricultural Re-search, AIR 1993 SC 384 : (1993) 1 SCC 182; Ajay Jadhav
vs Government of Goa, AIR 2000 SC 451 : (1999) 9 SCC 4.
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significant point. Since the plea of equal pay for equal work has to be examined with reference to
Art. 14, the burden is upon the petitioners to establish their right to equal pay, or the plea of

discrimination, as the case may be.73 In the instant case, the petitioners (respondents before the
Supreme Court) failed to discharge this onus.

3.1.3 Alternative Solutions: instead of mandating paid menstrual leave, other measures could be
explored to address the needs of female employees during menstruation. For example, employers
could offer flexible work arrangements, access to menstrual hygiene products, or additional health
benefits to support women's health and well-being without imposing additional financial burdens.
This approach would allow for more tailored solutions that take into account the specific needs and
circumstances of different workplaces.

3.2.1 These solutions, such as flexible work arrangements and access to health benefits, align with the
state's obligation under Article 42 of the DPSPs to provide just and humane conditions of work and
maternity relief. Article 42 imposes a duty on the Central as well as the state governments to apply
this principle in making laws relating to maternity benefits and working conditions in factories,
etc.

3.3 Budgetary Constraints: The respondent argues that while menstrual leave is a worthy
consideration, the implementation of such a policy may impose significant financial burdens on
employers, especially small and medium-sized enterprises (SMEs). Given the diverse economic
landscape of Indus and the varying capacities of different employers, mandating paid menstrual
leave across the board may not be feasible without adequate financial support or incentives from
the government.

3.3.1 Article 39 of the Directive principles of state policy which emphasizes that the state shall, in
particular, direct its policy towards securing that citizens, men, and women, equally, have the right
to an adequate means of livelihood. Opposing the mandate of paid menstrual leave in the
workplace is essential due to the significant financial burdens it may impose on employers,
particularly small and medium-sized enterprises (SMEs). Many businesses, especially SMEs,
operate on tight budgets and may struggle to afford additional benefits such as paid leave.

73
Ibid
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MEMORIAL ON BEHALF OF RESPONDENT
1ST JUSTICE ANIL KUMAR UPADHYAY MEMORIAL NATIONAL MOOT COURT COMPETITION 2024

Mandating paid menstrual leave without considering the economic capacity of employers could
lead to financial strain and potential layoffs, ultimately hindering economic growth and job
creation. Impact on Productivity and Competitiveness: Respondent contended that introducing paid
menstrual leave could potentially disrupt workflow and productivity in certain sectors, particularly
those that rely heavily on continuous operations or have tight deadlines. In highly competitive
industries, such disruptions could affect the company's ability to remain competitive in the global
market.

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MEMORIAL ON BEHALF OF RESPONDENT
 1ST JUSTICE ANIL KUMAR UPADHYAY MEMORIAL NATIONAL MOOT COURT COMPETITION 2024

PRAYER
Wherefore in light of issues raised, arguments advanced and authorities cited, it is most humbly
requested that this Hon’ble Court pass an order
a. To Declare, that the PIL is not Maintainable
b. To Declare, that there is no violation of Art. 14, 15 and 21
c. To Hold, that there is no Socioeconomic Equality in DPSP

AND/OR
Pass any other order or relief that this Hon’ble court believes is in the best interest of Justice,
Fairness, Equity, and Good Conscience.
All of which is most humbly and respectfully submitted.

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MEMORIAL ON BEHALF OF RESPONDENT