MEMORIAL ON BEHALF OF PETITIONER

TEAM:9
BEFORE THE HON’BLE HIGH COURT OF KERALA

IN THE MATTERS OF

AQC FOUNDATION PETITIONER

VS.

RESPONDENT
UNION OF INDIA

WRIT PETITION (CRIMINAL). NO. 38190/2023

ON SUBMISION TO THE HON’BLE HIGH COURT OF KERALA

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA,1950

MEMORIAL ON BEHALF OF PETITIONER

COUNSEL ON BEHALF OF PETITIONER

BY,

ELDHO JOY

(ROLL.NO. 026)B.B.A,LL.B(HONS)(2019-24)

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MEMORIAL ON BEHALF OF PETITIONER

Table of Contents

Abbreviations............................................................................................................................. 3

Index of Authorities ................................................................................................................. 4-5

Statement of Jurisdiction ........................................................................................................ 6

Statement of Facts ................................................................................................................... 7

Issues Raised ............................................................................................................................ 8

Summary of Arguments......................................................................................................... 9

Arguments Advanced............................................................................................................... 10-18

1) Whether the Public Interest Litigation is Maintainable before the Hon'ble H.C?

2) Whether the Exception II of Sec 375 IPC, is Constitutionally valid ?

3) Whether the Court has the power to direct Legislature to make Laws?

Prayer ........................................................................................................................................ 19

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MEMORIAL ON BEHALF OF PETITIONER

ABBREVIATIONS
SERIAL NO. ABBREVIATIONS TERM
1. & And
2. ¶ Paragraph
3. ¶¶ Paragraphs
4. S. Section
5. AIR All India Reporter
6. art. Article
7. cl. Clause
8. Const. Constitution
9. Ed. Edition
10. GNCTD Government Of National Capital Territory Of
Delhi
11. Hon’ble Honorable
12. Ltd. Limited
13. n. Note
14. No. Number
15. Nos. Numbers
16. pp. Page Number
17. SC Supreme Court
18. SCC Supreme Court Cases
19. SCR Supreme Court Reports
20. v. Versus

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MEMORIAL ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

Cases

 AnujGarg & Orsv. Hotel Association Of India & Ors

 Ashok Kumar Pandey v. The State Of West Bengal
 Balram Kumawat v. Union of India
 Devidas Ramchandra Tuljapurkar v. State of Maharashtra
 Hiral P. Harsora v. Kusum Narottamdas Harsora
 Independent Thought v.Union of India
 Janata Dal vs H.S.Chowdhary And Ors
 Joseph Shine v. Union of India
 Peerless General Finance and Investment Co. Ltd.v.Reserve Bank of India
 State of Gujarat v. Ambika Mills
 X v. Principal Secretary, Health and Family Welfare Department, GNCTD
 Tukaram v. State of Maharashtra (1979)2 S.C.C.143(India).
 Soumitri Vishnu vs. Union of India,1985 S.C.C 137
 Revathi vs. Union of India,AIR 1988 S.C 835
 C.B.Muthamma vs. Union of India,1979, 4 S.C.C 260
 Neera Mathur vs. L.I.C,1992,S.C.C. 286
 Madhu Kishwar vs. State of Bihar, 1996, S.C.C, 148
 Sarla Mudgal vs. Union of India, 1995, S.C.C., 635
 Vishakha v. State of Rajasthan, AIR 1997 SC 3011
 Githa Hariharan v. Reserve Bank of India (1999)
 Mary Roy v. State of Kerala (1986)
 Sheila Barse v. Union of India (1986)
 Sarla Mudgal v. Union of India (1995)

Foreign Cases

 People v. Liberta.
 Rv. R

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MEMORIAL ON BEHALF OF PETITIONER

LIST OF STATUTES REFERRED

 THE INDIAN PENAL CODE (1860)

 THE CONSTITUTION OF INDIA (1950)

 SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION,

PROHOBITION, AND REDRESSAL) ACT,2013

LIST OF BOOKS

 V.N.SHUKLA’S- CONSTITUTION OF INDIA, EBC (13TH ED..)

 M.P. JAIN – INDIAN CONSTITUTIONAL LAW, LEXIS NEXIS (8TH ED.)

 INDIAN PENAL CODE, RATANLAL DHIRAJILAL

 CRIMAL LAW IN INDIA;CRIME AND CRIMINALS, K.I. VIBHUTE

 TEXTBOOK ON INDIAN PENAL CODE, K.D. GAUR(5TH ED)

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble High Court of Kerala under Article 2261 of the
Constitution of India,1950.

1
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to
which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to the party in whose favour such order has been made
or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from
the date on which it is received or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the
next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim
order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme court by clause ( 2 ) of Article 32

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MEMORIAL ON BEHALF OF PETITIONER

STATEMENT OF FACTS

Mr. Ram (24) and Lakshmi (21) were in relationship and they wanted to get married. But
their families were against their relationship. The couple got married on 24th June 2023
after duly complying with the provisions of Hindu Marriage Act, 1955.
After the Marriage, Ram and Lakshmi started living separately from their parents.
Then later Ram decided to move with his parents. Initially Lakshmi was against the idea of
shifting With their in -laws, but due to the pressure from Ram, Lakshmi agreed to live
with his parents. The marital relation between Ram and Lakshmi become worse as they
started having regular fights.
On 17th July 2023, there was a family function at Ram's place and relatives and
neighbours were present. Suddenly on some issues Ram and Lakshmi got into a heated argument
and used abusive language in the presence of family and neighbours. Immediately after the incident
Lakshmi decided to leave her marital home for sometime and went back to her parent's place.
After the incident she stopped talking to Ram. On the next day, Ram in an intoxicated state
visited Lakshmi's place, were Lakshmi was alone. Ram and Lakshmi, both had a heated argument,
this angered Ram and forced himself upon Lakshmi against her will had sexual intercourse with her.
Lakshmi initially resisted but later she surrendered to Ram. After the incident, she narrated the
whole story to her family, who immediately went to the nearest police station and lodged a
complaint against Ram, under sections 498A & 354A IPC,1860. The Police did not charged
Sec 375 IPC ,on the basis that her marriage existed at the time when Ram had sexual Intercourse
with her. Then she approached AQC Foundation and the NGO filed a Public Interest Litigation
before the Hon'ble High Court.

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MEMORIAL ON BEHALF OF PETITIONER

ISSUES RAISED

1) Whether the Public Interest Litigation is Maintainable before the Hon'ble H.C?

2) Whether the Exception II of Sec 375 IPC, is Constitutionally valid ?

3) Whether the Court has the power to direct Legislature to make Laws?

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MEMORIAL ON BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

1. The Petition is maintainable under law as the matter involves substantial public

interest and is being filed in good faith as a Public Interest Litigation as permitted

by law.

2. That the Exception to Section 375 should be struck down as:

(1) There exists no presumption in favour of the constitutionality of Exception

II to S. 375 of the IPC;

(2) The striking down of Exception II to S. 375 of the IPC shall not lead to the

formation of a new offence;

(3) Exception II to S. 375 is not in consonance with the fundamental rights of

women and goes against Articles 14, 15(1), 19(1)(a), and 21 of the

Constitution;

(4) It is the duty of this Hon’ble court to set Exception II to S. 375 of the IPC

aside under Art. 13, without awaiting legislative action.

3. The Court has the power to direct Legislature to make Laws. The power of the court

to direct the legislature to make laws for women and children is derived from the

constitutional provisions and legal framework of the country. The Indian judiciary

has the authority to interpret and enforce laws that protect the rights of women and

children, and in some cases, they may also have the power to direct the legislature

to create new laws or amend existing ones.

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MEMORIAL ON BEHALF OF PETITIONER

ARGUMENTS ADVANCED

ISSUE 1 : Whether the Public Interest Litigation is Maintainable before the Hon'ble H.C?

1. An Public Interest litigation has been seen by our Courts as a tool that can be used
meticulously by the judiciary to ensure and safeguard public interest behind any public act
or action. It is used as a means to ensure social justice is given to all people.1 The Petitioners
Demand in this case is a just one, and one furthering women’s rights by asking for their
fundamental rights to be enforced not just outside a marriage but within it as well. The
Societal evil of not criminalizing marital rape has led to domestic abuse and inflicted
suffering and trauma on millions of women across the years.

2. The Court must see the clear social issues being raised by the matter all involving basic
human dignity. This petition is filed for the common societal interest, not the interest or
benefit of any one individual. This Court itself has laid down that whenever there is
someone suffering from Fundamental rights abuses, that’s when PILs should be used and
hence we submit the petition is maintainable before this court under law.2

ISSUE 2 : Whether the Exception II of Sec 375 IPC, is Constitutionally valid ?

1. The Petitioner is aggrieved by the Exception II to S. 375 of the IPC, which defines rape, says
that sexual intercourse by a man with his wife is not rape, unless she is below 15 years of age.
The Hon’ble Supreme Court had itself taken an emphatic view to the rationale behind the
Petitioner’s demand when it laid down that “a rapist remains a rapist and marriage with the
victim does not convert him into a non-rapist”.3 In holding so, the Apex Court had struck
down a part of Exception II to S.375 of the IPC, and the judgment was thus confined to rape
by husbands of their minor wives only. It is argued that all female citizens are guaranteed the
same constitutional rights to bodily integrity, equality and free expression, regardless of
whether they are adult or minor wives.

2. Recently, the Hon’ble Supreme Court has also clarified that wives, who conceive out of
forced sex by their husbands, shall also be protected as ‘survivors of rape’ within the

1
Ashok Kumar Pandey v. The State Of West Bengal (2004)3SCC349.
2
Janata Dal vs H.S.Chowdhary And Ors.(1992) 4SCC305.
3
Independent Thought v.Union of India,(2017)10SCC800,¶73.

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MEMORIAL ON BEHALF OF PETITIONER

meaning of the Medical Termination of Pregnancy Act, 1971. 4 The ratio adopted by the
Courts in the aforementioned decisions should explicitly apply to all women, minor or
adult, for all purposes and not just for limited objects of the Medical Termination of
Pregnancy Act, 1971. In light of the above considerations, Exception II to S. 375 of the IPC
deserves to be struck down in the first instance.

3. Regardless, the Petitioner shall establish the invalidity of the marital rape exception on three
grounds: Firstly, there can be no argument as to the presumption of the constitutionality of
Exception II to S. 375 of the IPC on the basis that it is a pre- constitutional provision (2.1);
Secondly, striking down the marital rape exception shall not lead to the creation of a new
offence (2.2); and lastly, Exception II to S. 375 of the IPC fails to pass Constitutional
muster, since it is violative of Arts. 14, 15, 19 & 21 of the Constitution (2.3), and it is thus
within the mandate of this Hon’ble Court to set it aside under Art. 13 of the Constitution,
without awaiting legislative action (2.4).

2.1 THAT THERE EXISTS NO PRESUMPTION IN FAVOUR OF THE CONSTITUTIONALITY OF

EXCEPTION II TO S.375 OF THE IPC.

4. It may be argued that Exception II to S. 375 of the IPC being a piece of pre-colonial
legislation, there exists a presumption of constitutionality in its favour. However, it is
submitted that the Hon’ble Supreme Court has clarified on several occasions that, “there
would be no presumption of constitutionality in a pre-constitutional law framed by a
foreign legislature. The provision would have to be tested on the anvil of Part III of the
Constitution”.5 This coupled with the fact that the marital rape exception leads to an ex-
facie infringement of a married woman's fundamental rights under Part III of the
Constitution, shifts the burden of proof on to the State to demonstrate that the statute is
constitutional.

5. In consonance with the ‘strict scrutiny test’, the onus lies upon the State to demonstrate
that: first, the impugned provision is intra vires the Constitution; second, the infringement
of women’s rights via the impugned provisions serves a compelling State interest; third, the
infringement is proportionate; and lastly, the marital rape exception is the least restrictive
measure that can be adopted to progress the State’s interest and the object it

4
X v.Principal Secretary, Health and Family Welfare Department,GNCTD,2022SCCOnLineDel2628,¶71.
5
Joseph Shine v.Union of India,2018SCCOnLineSC1676,¶10.

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MEMORIAL ON BEHALF OF PETITIONER

seeks to achieve.6 It is submitted that despite the fact that the burden of proving the
unconstitutional nature of the marital rape exception does not lie on the Petitioner, it shall
in good faith proceed to demonstrate the same through its submissions.

2.2 THAT THE STRIKING DOWN OF EXCEPTION II TO S.375 OF THE IPC SHALL NOT LEAD TO
THE FORMATION OF A NEW OFFENCE.

6. The Hon’ble Supreme Court has previously held that the partial striking down of Section
375 IPC did not lead to the fact of a new offence being created. Rather, such invalidation
of a part of Exception II to Section 375 IPC was being done to bring it in consonance with
the dictates of the Constitution.7 Striking down the marital rape exception, far from creating
a new offence, would merely enlarge the scope of offenders to include husbands who rape
their adult wives within the purview of the offence of rape outlined under Section 375 of
the IPC.

7. In this regard, reference must be made to the reasoning followed by the New York Court of
Appeals when it read down the marital rape exception as being “unconstitutionally under
inclusive”.8 In doing so, that Court held that striking down an exemption that is under-
inclusive, does not amount to the “creation of crime”.9 Similarly, the House of Lords has
previously held when striking down Lord Hale’s common law fiction of implied consent in
marriage, that doing so was not equivalent to the creation of a new offence but only
amounted to the removal of a fiction that was “anachronistic and offensive”.10

8. In light of the above considerations, it becomes clear that when adjudging the constitutional
validity of a provision, if the court deems it fit to strike it down and because of this, if a
new class of offenders get included within the ambit of the provision, then by no stretch of
imagination would this amount to the creation of a new offence.11As has

6
Anuj Garg & Ors v.Hotel Association Of India & Ors, AIR2008SC663,¶¶46-51.
7
Independent Thought v.Union of India,(2017)10SCC800,¶¶81-85.
8
People v.Liberta,64N.Y.2d152(NewYork Court of Appeals).
9
Ibid.
10
Rv.R,[1991] UKHL12(House of Lords).
11
State of Gujarat v. Ambika Mills,(1974)4SCC656.

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MEMORIAL ON BEHALF OF PETITIONER

been recognised by the Hon’ble Supreme Court, the law distinguishes between the creation
of a new offence and the mere interpretation of constituents of an existing offence which is
the traditional negative act of judicial review. 12 It is thus submitted that unlike certain
apprehensions that may be raised to the contrary, the striking down of Exception II to S.
375 of the IPC will not lead to the creation of a new offence.

2.3 THAT EXCEPTION II TO S.375 IS NOT IN CONSONANCE WITH THE FUNDAMENTAL RIGHTS
OF WOMEN.

9. It is submitted that Exception II to S.375 of the IPC is violating fundamental rights as (1)
It violates Article 14; (2) It violates Article 15(1); (3) It violates Article 21; and (4) It
violates Article (19)(1)(a).

10. The IPC classifies victims on the basis of their married status depending on if they are
married or not different punishments and criminal liability is established. This classification
is not connected and bears no relation whatsoever to the object of the statute. This object in
this case is to criminalise rape and protect women’s bodily integrity. Hence the reasonable
classification test that is required for a statue to pass the article 14 constitutionality test is
not fulfilled in the present case.

11. It also violates Article 15(1) of the constitution. The Supreme Court has held in past
decisions that any discrimination made on the basis of sex would be arbitrary and founded
on stereotypical understanding of sex. Here, we contend the exception draws on a
stereotypical understanding of marriage and is thus discriminatory under 15(1).

12. We also contend that the provision violate article 21 of the constitution of India. This is
because a women’s right and freedom to make reproductive decisions is her area of personal
liberty. No restriction whatsoever can be put on exercise of reproductive choices in our
country as per the rights guaranteed under 21. However, by allowing a man non- consensual
sexual access to a women, this reproductive choice leaves her hands.

12
Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 16521

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MEMORIAL ON BEHALF OF PETITIONER

13. Finally, it is also contended that expression of sexual desires including refusal to have
sexual intercourse has been state by the courts as under the Freedom of speech and
expression right that is embodied in our constitution under Article 19. This too is violated
by the exception as it takes away a women’s right to say no to her husband for sexual
intercourse.

2.4 THAT IT IS THE DUTY OF THIS HON’BLE COURT TO SET EXCEPTION II TO S.375 OF THE

IPC ASIDE UNDER ART.13,WITHOUT AWAITING LEGISLATIVE ACTION

14. Art. 13 of the Constitution enjoins constitutional courts to declare any law, which is in force
in India, whether enacted before or after the commencement of the Constitution, ‘void’ in
case it is found to be inconsistent with or takes away and/or abridges the fundamental rights
conferred under Part III of the Constitution. It is abundantly clear that Exception II to S.375
of the IPC infringes upon several fundamental rights of the married women of India. Unlike
most other jurisdictions, India has a written Constitution which lays great emphasis on
fundamental rights. Exception II to S. 375 of the IPC is liable to be struck down as it does
not align with the ethos of the Constitution as outlined under Part III.

15. Moreover, when examining the validity of a provision, the courts should apply the ‘effect
test’ in order to determine whether an artificial distinction is created between different
classes of persons.13Exception II to S.375 of the IPC seeks to make a dubious distinction
between husbands and non-husbands, in sofar as perpetrators are concerned and likewise,
between wives and non-wives with regards to the category of victims. Such a distinction
should not be allowed to stand.

16. If a provision is found to be unconstitutional, then the courts must act in accordance with
Art. 13 of the Constitution and holding that the matter is within the ken of the legislature is
not a correct approach.14 It is also to be noted that recommendations have time and again
been made to the Parliament, calling for the impugned provisions to be removed and the
law to be amended, in consonance with constitutional and treaty obligations. However, the
Legislature has failed to act. Article 13 read with Article 32 of the Constitution empowers the
Hon’ble Supreme Court to strike down laws that are inconsistent with or in derogation of
fundamental rights.

13
AnujGarg & Ors v. Hotel Association Of India & Ors,AIR2008SC663.
14
Peerless General Finance and Investment Co.Ltd. v. Reserve Bank of India,(1992)2SCC343

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MEMORIAL ON BEHALF OF PETITIONER

17. The Hon’ble Supreme Court thus has an obligation to declare the marital rape exception
to be unconstitutional, more so, when the Legislature has been lethargic. It is therefore
submitted that this Hon’ble Court must set aside the marital rape exception in line with
Art. 13 of the Constitution.

ISSUE 3 : Whether the Court has the power to direct Legislature to make Laws?

3.1 Role of judiciary in legislation for women

The historic injustices done by society towards women were even visible in the judicial decisions
as well. Equality of status and equality of opportunity is the clarion call of our Constitution.
According to the framers of our Constitution equality could only be amongst equals; otherwise it
might result in injustice. Hence, they proposed the concept of substantive equality, whereby special
provisions were made for unequals to bring them at par with the equals. They saw women as
victims of the rigid hierarchical social system, and hence, introduced Article 15 (3)16 in the
Constitution directing the State and all its machineries to take affirmative action and protective
discrimination to alleviate centuries of exclusion of women from politics, education and public
employment. It goes to the credit of Judiciary that the Supreme Court and the various High Courts,
in their plethora of decisions, have recognized and given effect to this vision, affirming that
compensating for discrimination is not an exception to equality, but a necessary means of achieving
equality. Article 15(3) has been used by the Supreme Court, thus, not only to uphold the laws that
treat women favourably than men, but also to interpret the laws in a manner to extend protection to
women.

The infamous Mathura Rape Case17 is a profound example of the conservative and
patriarchal approach taken by the Apex Court. The judgments of the Court in case of Soumitri
Vishnu vs. Union of India,18 and which was subsequently followed in Revathi vs. Union of India19
were actually anti-gender justice decisions. In the pseudo name of protection, it actually widened
further the inequalities faced by women in the wedlock. With increase in judicial activism
Judiciary has always molded itself into the role of champion for women’s rights. If any adverse
discrimination against women, was noted by the Judiciary in any of the existing laws and State
actions, the Judiciary was quick to strike it down. At the same time, Judiciary has been prompt to
uphold the validity of the Legislations enacted for protection of women’s rights.

16
Art. 15(3) of Indian Constitution
17
Tukaram v. State of Maharashtra (1979)2 S.C.C.143(India).
18
Soumitri Vishnu vs. Union of India,1985 S.C.C 137
19
Revathi vs. Union of India,AIR 1988 S.C 835

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MEMORIAL ON BEHALF OF PETITIONER

In C.B.Muthamma vs. Union of India,20 the Supreme Court struck down the discriminatory rules
of the Indian Civil Services against women on the ground that they violated the fundamental
right of women employees to equal treatment in matters of public employment. Justice Krishna
Iyer has stated that, “Freedom is indivisible, so is justice. That our founding faith enshrined in
Articles 14 and 16 should have been tragically ignored vis-à-vis half of India’s humanity, viz., our
women is a sad reflection on the distance between Constitution in the book and law in action.”

In Neera Mathur vs. L.I.C.,21 the Court recognised woman’s right to privacy in respect of
information regarding her reproductive functions. It held that the questionnaire that sought
information on the dates of the menstrual periods and past pregnancies amounted to an invasion
of the privacy of a person and therefore could not be made.

Justice K Rama Swamy in Madhu Kishwar vs. State of Bihar,22 observed that, “Half of the
Indian population too are women. Women have always been discriminated against and are
suffering discrimination in silence. Self-sacrifice and self –denial are their nobility and fortitude
and yet they have been subjected to all inequalities, indignities, inequality and discrimination.”

Even though the State has not yet made any effort to introduce Uniform Civil Code in India, the
judiciary has recognised the necessity of the uniformity in the application of civil laws like the
law of marriage, succession, adoption and maintenance etc., in the case of Sarla Mudgal vs.
Union of India,23 and other cases.

3.2 Constitutional Empowerment of Judiciary

In India, the power of the court to direct the legislature to make laws for women and children is
derived from the constitutional provisions and legal framework of the country. The Indian
judiciary has the authority to interpret and enforce laws that protect the rights of women and
children, and in some cases, they may also have the power to direct the legislature to create new
laws or amend existing ones.

20
C.B.Muthamma vs. Union of India,1979, 4 S.C.C 260
21
Neera Mathur vs. L.I.C,1992,S.C.C. 286
22
Madhu Kishwar vs. State of Bihar, 1996, S.C.C, 148
23
Sarla Mudgal vs. Union of India, 1995, S.C.C., 635

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MEMORIAL ON BEHALF OF PETITIONER

The Indian Constitution, under Article 32 and Article 226, empowers the Supreme Court and
High Courts to issue writs for the enforcement of fundamental rights, including those related to
women and children. This gives the courts the authority to intervene and direct the legislature to
make necessary laws for the protection and welfare of women and children.
Therefore, in India, the judiciary does have the power to direct the legislature to make laws for
women and children, based on the constitutional provisions and legal framework of the country.

Article 15 of the Indian Constitution prohibits discrimination on the grounds of religion, race,
caste, sex, or place of birth. This article provides the basis for the judiciary to intervene and
direct the legislature to make laws for the protection and welfare of women and children. The
courts can interpret and enforce this provision to ensure that laws are in place to uphold the
rights of women and children and prevent discrimination against them.

In several cases, the Indian courts have used Article 15 to direct the legislature to create laws that
address issues such as gender-based discrimination, violence against women, child labor, and
child marriage.

Therefore, Article 15 of the Indian Constitution plays a crucial role in empowering the judiciary
to direct the legislature to make laws for women and children, ensuring their protection and
welfare.

The Vishakha v. State of Rajasthan case24 was a landmark judgment by the Supreme Court of
India in 1997. The case involved the gang rape of a social worker in Rajasthan, which led to
a public interest litigation being filed by women's rights groups seeking guidelines to
address sexual harassment at the workplace.

The case highlighted the need for legal and policy measures to protect women from sexual
harassment in the workplace and played a crucial role in the enactment of the Sexual Harassment
of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. This act provides a
legal framework for addressing and redressing complaints of sexual harassment at the workplace.

The court's recognition of sexual harassment as a violation of women's fundamental rights under
the Indian Constitution was a significant step towards ensuring the protection and safety of women
in the workplace.

24
Vishakha v. State of Rajasthan, AIR 1997 SC 3011

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MEMORIAL ON BEHALF OF PETITIONER

By laying down the Vishakha guidelines, the Supreme Court essentially directed the legislature
to fill the gap in the law by enacting specific legislation to address sexual harassment at the
workplace. This case demonstrated the court's proactive role in shaping and influencing legislative
action, especially in areas where there is a pressing need for legal and policy measures.

The court's power to direct the legislature to make laws is derived from its role as the guardian of
fundamental rights and its duty to uphold the Constitution. When the existing legal framework is
found to be inadequate or lacking in addressing a particular issue, the court has the authority to
intervene and provide necessary directions to the legislature. This power is essential in ensuring
that the law evolves and adapts to changing social realities and challenges.

In Githa Hariharan v. Reserve Bank of India (1999)25: This case addressed the issue of guardianship
rights of mothers. The Supreme Court held that mothers are natural guardians and should b
e conferred with equal rights as fathers concerning the custody of their children.

Mary Roy v. State of Kerala (1986)26 case dealt with the inheritance rights of Syrian Christian women
in Kerala. The Supreme Court ruled that Christian women are entitled to an equal share of ancestral
property, challenging the discriminatory provisions existing at that time.

In Sheila Barse v. Union of India (1986)27 focused on the conditions of women in prisons. The
Supreme Court, recognizing the vulnerable position of women prisoners, issued directives to
improve their living conditions and protect their rights.

In Sarla Mudgal v. Union of India (1995)28 addressed the issue of bigamy and conversion to Islam
for the purpose of contracting a second marriage. The Supreme Court ruled that a Hindu husband,
upon converting to Islam solely for the purpose of contracting a second marriage, would still be
guilty of bigamy under Hindu Marriage Act.

All these cases have contributed to the evolution of laws in India concerning the rights and
protection of women and children, showcasing the judiciary's role in interpreting and shaping legal
frameworks.

25
Githa Hariharan v. Reserve Bank of India (1999)
26
Mary Roy v. State of Kerala (1986)
27 Sheila Barse v. Union of India (1986)

28 Sarla Mudgal v. Union of India (1995)

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MEMORIAL ON BEHALF OF PETITIONER

PRAYER

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare that:

1. The PIL filed by the Foundation is maintainable under law; and

2. The Exception II to S.375 of the IPC is liable to be struck down as being unconstitutional.

3. The Court has the power to direct Legislature to make Laws

And pass any such order in the interest of justice, equity, and good conscience.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE PETITIONER

19