113507179 Mol s Final Memorial

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BANARAS HINDU UNIVERSITY

FACULTY OF LAW

MOOT COURT COMPETITION, 2010

In the Hon’ble Supreme Court of India, NEW DELHI

Case Concerning, ‘Special Leave Petition under Article 136 of the Constitution of India

and Fundamental Right of a Person to Life’

In the Matter of

Mrs. Nita Jain ............................................................................................... (Appellant)

&

Sahayog (NGO) …...………………………………………………………… (Petitioner)

V.

Union of India …………………………………....……….………………. (Respondent)

On submission to the Hon’ble Supreme Court of India

COUNSEL FOR THE RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF RESPONDENT PAGE 1

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………….……………….3

INDEX OF AUTHORITIES……………………………………………….……………...4

STATEMENT OF JURISDICTION………………………………….…………………...5

STATEMENT OF FACTS……………………………………………………….….…….6

ISSUES RAISED………………………………………………………………………….9

SUMMARY OF ARGUMENTS……………………………………………....………….10

ARGUMENTS ADVANCED………………………………………………………...…..13

PRAYER FOR RELIEF…………………………………….………………………..……28


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List Of Abbreviations


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1. & AND

2. §S SECTION

3. AIR ALL INDIA REPORTER

4. PIL PUBLIC INTEREST

LITIGATION

5. MTPA MEDICAL TERMINATION OF

PREGNANCY ACT

6. Hon’ble HONOURABLE

7. ART. ARTICLE

8. SC SUPREME COURT

9. SCC SUPREME COURT CASES

10. UOI UNION OF INDIA

11. V. VERSUS

12. SCR SUPREME COURT REVIEWS

13. BOM. BOMBAY

14. CRI. CRIMINAL


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INDEX OF AUTHORITIES

LIST OF CASES

1. Peoples Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473.

2. Judges Transfer Case, A.I.R. 1982 S.C. 149.

3. Nikita Mehta v. State of Maharashtra

4. Jairaj Shah Case

5. Roe v. Wade, 410 U.S. 113 (1973).

6. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.

7. Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946.

8. P. Rathinam v. Union of India, A.I.R. 1994 S.C. 1844: (1994) 3 S.C.C. 394.

9. M.S. Dubal v. State of Maharashtra, 1987 Cri. L. J. 743 (Bom.).

10. Naresh Marotrao Sakhre v. Union of India, 1995 Cri. L. J. 96 (Bom.).

11. M.C. Mehta v. Union of India, (2004) 6 S.C.C. 588, 613: A.I.R. 2004 S.C. 4618.

12. Pritam Singh v. The State, A.I.R. 1950 S.C. 169 : 1950 S.C.R. 453.

LIST OF BOOKS

1. DURGADAS BASU, CONSTITUTIONAL LAW OF INDIA (WADHWA & COMPANY NEW

DELHI, 2008).

2. M.P JAIN, INDIAN CONSTITUTIONAL LAW (WADHWA & COMPANY NAGPUR 2010).

3. V.N SHUKLA, CONSTITUTION OF INDIA (EASTERN BOOK COMPANY NEW DELHI

2009).

LIST OF ONLINE SOURCES

www.manupatra.com

www.indlaw.com

www.scconline.com

www.unilexlegal.com

LIST OF STATUTES REFERRED

The Constitution of India, 1950

Medical Termination of Pregnancy Act, 1971

Indian Penal Code, 1860

Hindu Succession Act, 1956

Transfer of Property Act, 1882


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Limitation Act, 1963

STATEMENT OF JURISDICTION

The petitioners approach the Honourable Supreme Court of India under Article 21 of the

Constitution of India, 1950. The respondents respectfully submit to this jurisdiction

invoked by the petitioners.


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STATEMENT OF FACTS

1. MRS. NITA JAIN, THE APPELLANT IS AN INHABITANT OF THE STATE OF

SAURASHTRA IN THE REPUBLIC OF INDIA & WAS EXPECTING HER FIRST CHILD.

IN THE 20TH WEEK OF HER PREGNANCY, SHE WAS INFORMED BY HER

CONSULTING DOCTORS THAT THE FOETUS IN HER WOMB WAS DIAGNOSED FOR

CONGENITAL HEART DISEASE. HER DOCTORS ALSO TOLD HER THAT AFTER

BIRTH THE CHILD WOULD NEED AN ARTIFICIAL PACEMAKER FOR ITS HEART &

THE QUALITY OF ITS LIFE WAS LIKELY TO BE POOR. THEY ALSO CAUTIONED

THAT THERE MIGHT BE SOME PROBLEMS OR COMPLICATIONS FOR THE

APPELLANT TO CONCEIVE AGAIN & THEREFORE, ADVISED HER TO HAVE AN

ABORTION IMMEDIATELY. FACED WITH THIS DILEMMA, THE APPELLANT &

HER HUSBAND SOUGHT OPINION FROM VARIOUS OTHER DOCTORS, MOST OF

WHOM CONFIRMED THE AFORESAID.

2. UPON HAVING CONFIRMED THE ABNORMALITY OF THE FOETUS & AFTER MUCH

CONVINCING FROM HER HUSBAND, THE APPELLANT FINALLY IN THE 22ND

WEEK AGREED FOR ABORTION. ACCORDINGLY, THE COUPLE APPROACHED

THEIR GYNAECOLOGIST AT THE WELLINGTON HOSPITAL, WHO INFORMED

THEM THAT AS THE FOETUS WAS OVER 20 WEEKS OLD IT WAS NOT LEGALLY

PERMISSIBLE FOR THE APPELLANT TO ABORT THE FOETUS AT SUCH AN

ADVANCED STAGE OF HER PREGNANCY. BEING FACED WITH THE SAID LEGAL

OBSTACLE, THE APPELLANT SOUGHT LEGAL ADVICE & THEREAFTER FILED A

WRIT PETITION UNDER ART. 226 OF THE CONSTITUTION OF INDIA BEFORE

THE HONOURABLE SAURASHTRA HIGH COURT CHALLENGING THE

CONSTITUTIONALITY OF THE RELEVANT PROVISIONS OF THE MEDICAL

TERMINATION OF PREGNANCY ACT, 1971 WHICH BANS TERMINATION OF A

PREGNANCY BEYOND 20 WEEKS & ALSO IN THE ALTERNATIVE, MADE A

COMPASSIONATE PLEA TO THE COURT FOR PERMITTING THE ABORTION ON

MEDICAL GROUNDS AS AN EXCEPTIONAL CASE.

3. AT THE TIME OF HEARING OF THE PETITION, THE HIGH COURT APPOINTED AN

INDEPENDENT THREE MEMBER MEDICAL EXPERT COMMITTEE OF DOCTORS

FROM THE STATE TO RUN JM HOSPITAL TO EXAMINE THE APPELLANT & HER


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22 WEEKS OLD FOETUS & DIRECTED THEM TO SUBMIT THEIR REPORT ON THE

ISSUE. ACCORDINGLY, THE APPELLANT ATTENDED THE MEDICAL

EXAMINATION CONDUCTED BY THE EXPERT COMMITTEE, WHICH SUBMITTED

THEIR REPORT TO THE HONOURABLE HIGH COURT. IN THE SAID REPORT, THE

EXPERT COMMITTEE NOTED THAT THEY APPREHENDED A 60% CHANCES OF

INCAPACITATED & HANDICAP SURVIVAL OF THE FOETUS OWING TO A POSSIBLE

CONGENITAL HEART DISEASE & FURTHER OBSERVED THAT THE SAID

ABNORMALITY WOULD NOT IN ANY MANNER WHATSOEVER HAMPER OR EFFECT

THE APPELLANT’S HEALTH OR HER ABILITY TO CONCEIVE IN FUTURE. THE

EXPERT COMMITTEE, WITH A MAJORITY OF TWO MEMBERS & ONE

DISSENTING, RECOMMENDED AGAINST ABORTION OF THE FOETUS AT SUCH AN

ADVANCED STAGE OF PREGNANCY SINCE THE CHILD WOULD BE CAPABLE OF

LEADING A NORMAL LIFE WITH THE ASSISTANCE OF AN ARTIFICIAL

PACEMAKER.

4. RELYING UPON THE REPORT SUBMITTED BY THE EXPERT COMMITTEE, THE

HONOURABLE HIGH COURT DISMISSED THE WRIT PETITION WITH A RULING

THAT THE LAW OF THE LAND DID NOT PERMIT TERMINATION OF PREGNANCY

BEYOND THE 20 WEEKS & ALSO REMARKED THAT, IN VIEW OF THE EXPERT

COMMITTEE REPORT, THE CASE IN HAND WAS NOT AN EXCEPTIONAL ONE TO

CONSIDER THE COMPASSIONATE PLEA OF THE APPELLANT ON MEDICAL

GROUNDS. THE ISSUE PERTAINING TO THE CONSTITUTIONALITY OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 WAS DISMISSED AS NOT

PRESSED BY THE APPELLANT.

5. IN THE MEANWHILE, “SAHAYOG”, A NON GOVERNMENTAL ORGANIZATION

(NGO) FORMED WITH THE OBJECT OF PROMOTING SOCIAL CAUSES & HEALTH

CARE FOR WOMEN IN INDIA, FILED A PUBLIC INTEREST LITIGATION IN THE

HONOURABLE SUPREME COURT OF INDIA CHALLENGING THE

CONSTITUTIONAL VALIDITY OF § 3(2) OF THE MEDICAL TERMINATION OF

PREGNANCY ACT, 1971 ON THE GROUND THAT IT VIOLATED THE

FUNDAMENTAL RIGHT OF A PERSON TO LIFE UNDER ART. 21 OF THE

CONSTITUTION OF INDIA, WHICH ENCOMPASSES WITHIN ITSELF THE RIGHT TO

ABORTION & PERSONAL SAFETY OF A PREGNANT WOMAN. ALONG WITH THE


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PETITION, THE NGO ALSO FILED AN APPLICATION BEFORE THE HONOURABLE

APEX COURT THAT THE JUDGEMENT PASSED BY THE HONOURABLE SUPREME

COURT OF INDIA IN THE CASE OF GIAN KAUR V. STATE OF PUNJAB (REPORTED

AT AIR 1996 SC 946) BE RECONSIDERED BY A LARGER BENCH. AT THE TIME

OF HEARING OF THE SAID APPLICATION, THE SUPREME COURT BEING PRIMA

FACIE SATISFIED THAT THE ISSUE RELATING TO TERMINATION OF PREGNANCY

BEING A OFFSHOOT OF THE ISSUE OF EUTHANASIA REQUIRED CONSIDERATION

BY A LARGER BENCH, ALLOWED THE SAID APPLICATION WITH A

RECOMMENDATION TO THE CHIEF JUSTICE OF INDIA TO CONSTITUTE A

LARGER BENCH OF SEVEN JUDGES TO RECONSIDER THE RATIO OF GIAN KAUR

V. STATE OF PUNJAB CASE WITH REGARDS TO THE ISSUE OF TERMINATION OF

PREGNANCY & FINALLY LAY TO REST THE SOCIALLY IGNITED ISSUE INVOLVED

THEREIN.

6. ON LEARNING ABOUT THE ABOVE REFERENCE, THE APPELLANT IN THE 25TH

WEEK OF HER PREGNANCY DECIDED TO CHALLENGE THE ORDER/JUDGEMENT

PASSED BY THE HONOURABLE SAURASHTRA HIGH COURT & FILED A SPECIAL

LEAVE PETITION UNDER ART. 136 OF THE CONSTITUTION OF INDIA IN THE

HONOURABLE APEX COURT. AT THE ADMISSION STAGE OF THE SPECIAL

LEAVE PETITION, THE ADVOCATES FOR THE APPELLANT UPON AN ORAL

MOTION REQUESTED THE HONOURABLE COURT THAT THE ISSUE INVOLVED IN

THE INSTANT SLP WAS COMMON TO THE ABOVE REFERRED PUBLIC INTEREST

LITIGATION & THEREFORE, THE SAME BE CLUBBED THEREWITH & HEARD

FINALLY AT THE ADMISSION STAGE ITSELF. THE SAID REQUEST WAS ACCEPTED

BY THE HONOURABLE COURT & THE SPECIAL LEAVE PETITION & PUBLIC

INTEREST LITIGATION WERE DIRECTED TO BE CLUBBED TOGETHER & PLACED

FOR HEARING & FINAL DISPOSAL AT THE ADMISSION STAGE BEFORE THE

CONSTITUTIONAL BENCH OF THE SUPREME COURT OF INDIA.


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ISSUES RAISED

1. WHETHER FILING OF THE PUBLIC INTEREST LITIGATION IS JUSTIFIABLE?

2. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION 3(2)

OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

3. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A PERSON TO

LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA?

4. WHETHER IS THERE ANY NEED FOR RECONSIDERATION OF THE CASE OF GIAN

KAUR V. STATE OF PUNJAB?

5. WHETHER THE FILING OF SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF

CONSTITUTION OF INDIA JUSTIFIABLE?


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SUMMARY OF ARGUMENTS


It is humbly submitted before the Hon’ble Court that it is not justifiable to file PIL. A PIL can

be filed only when the following requirements are fulfilled:

a. There must be a public injury & public wrong caused by the wrongful act or omission

of the state or public authority.

b. It is for the enforcement of basic human rights of weaker sections of the community

who are downtrodden, ignorant & whose fundamental & constitutional rights have

been infringed.

c. It must not be frivolous litigation by persons having vested interests.

In this case, neither public injury or wrong has been caused to the appellant nor any of

her fundamental or constitutional right been infringed. Moreover, her decision to

abort the child will render a very wrong message to the society.

2. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION 3(2)

OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

§ 3 of MTPA state that – When pregnancies may be terminated by registered medical

practitioners-

(1) Notwithstanding anything contained in the IPC (45 of 1860), a registered medical

practitioner shall not be guilty of any offence under that code or under any law for the

time being in force, if any pregnancy is terminated by him in accordance with the

provision of this act.

(2) Subject to the provision of sub § (4), a pregnancy may be terminated by a

registered medical practitioner,-

(a) When the length of the pregnancy does not exceed twelve weeks if such medical

practitioner is, or


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(b) When the length of the pregnancy exceeds twelve weeks but does not exceed

twenty weeks, if not less than two registered medical practitioners are, of opinion,

formed in good faith, that-

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant

woman or of grave injury to her physical or mental health; or

(ii) There is a substantial risk that if the child born, it would suffer from such physical

or mental abnormalities to be seriously handicapped.

In this case after the medical examination of the appellant the expert committee in

their report recommended against abortion of the foetus at such an advanced stage of

pregnancy since the child would be capable of leading a normal life with the

assistance of an artificial pace maker, also it would not hamper the health of the

appellant nor she will face any problem to conceive in future. And aborting at such an

advanced stage may put the life of the appellant at risk, as abortion is a risky process

and it has many side-effects also baby become viable at this stage. Aborting the child

only because he will be just less than perfect is not justifiable & thus, challenging the

validity of § 3(2) of the MTPA too is in no way justifiable.

3. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A PERSON TO

LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA?

It is humbly submitted before the Hon’ble Court that there is no kind of violation of

fundamental right of a person to life under Art 21 of the Constitution of India. Art 21 assures

every person right to life & personal liberty. In this case the appellant approached

gynaecologist when the foetus was over 20 weeks old, it was not legally permissible for the

appellant to abort the foetus at such an advanced stage of pregnancy since baby becomes

viable at this stage. In other words the baby is no longer indispensably dependent on its

mother’s body & stands a chance of survival upon delivery, albeit with suitable aids at this

premature stage & foetus being a human being, entitled to protection, from the moment of

conception & therefore has right to life that must be respected. According to this argument,

abortion is homicide. There is in no way any sort of violation of the rights of the appellant,

but if she aborts her then it will definitely infringe the rights of that defenceless unborn child.


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4. WHETHER IS THERE ANY NEED FOR RECONSIDERATION OF THE CASE OF GIAN

KAUR V. STATE OF PUNJAB?

It is humbly submitted before the Hon’ble Court that there is not at all any need to reconsider

the case of Gian Kaur v. State of Punjab, as the facts of the case of Gian Kaur is altogether

different & deals with suicide/abetment of suicide somewhere linked with right to life under

Art 21. Under Art 21 the term life has a very expansive meaning & we cannot bring any

relevancy from the case of Gian Kaur by linking both the cases, as this case is about abortion

linked with right to life. Hon’ble High Court of Saurashtra placed its judgement based on the

report of expert medical committee who were against the abortion as there was no harm

whatsoever to the appellant, also the child was capable of leading a normal life with the

assistance of artificial pacemaker. So there is no point of abortion as it is now illegal too &

reconsidering the case of Gian Kaur would be mere waste of time of the court.

5. WHETHER THE FILING OF SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF


It is humbly submitted before the Hon’ble Court that the filing of Special Leave Petition

under Art 136 of Constitution of India is not justifiable. Special leave petition means that you

take special permission to be heard in appeal against any High Court/tribunal verdict. Usually

any issue decided by the State High Court is considered as final, but if there exist any

constitutional issue or legal issue which can only be clarified by the Supreme Court of India

then, this leave is granted by the Supreme Court & this is heard as a Civil or Criminal appeal

as the case may be. Going to the Supreme Court in appeal should not be considered a matter

of right by anyone but it is matter of privilege which only the Supreme Court will grant to

any individual if there exist an important constitutional or legal issue involved in any case

that was not properly interpreted by the concerned High Court against whose judgment you

approach the Highest court of the country not otherwise. After going through the facts of this

case we can see that it is not a special/important/exceptional case which requires any sort of

special attention. Thus, the filing of SLP under Art 136 of the Constitution of India is not

justifiable.


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ARGUMENTS ADVANCED


It is humbly submitted before the Hon’ble Court that it is not justifiable to file PIL as there

are some requirements1 to be meet for filing PIL.

Public Interest Litigation is not defined in any statute or act. It has been interpreted by

judges to consider the intent of public at large. Although, the main & only focus of such

litigation is only `Public Interest' there are various areas where a Public Interest Litigation

can be filed. ‘PIL means a legal action initiated in a court of law for the enforcement of

public interest or general interest in which the public or class of the community have

pecuniary interest or some interest by which their legal rights or liabilities are affected’2.

In Peoples Union for Democratic Rights v. Union of India3 the court now permits PIL or

Social Interest Litigation at the instance of “Public Spirited Citizens” for the enforcement of

constitutional & legal rights of any person or group of persons who because of their socially

or economically disadvantaged position are unable to approach court for relief. PIL is a part

of the process of participate justice & standing in civil litigation of that pattern must have

liberal reception at the judicial door steps.

In the Judges Transfer Case4 court held that PIL can be filed by any member of public

having sufficient interest for public injury arising from violation of legal rights so as to get

judicial redress. This is absolutely necessary for maintaining Rule of law & accelerating the

balance between law & justice. It is a settled law that when a person approaches the court of

1 Firstly, there must be a public injury & public wrong caused by the wrongful act or omission of the state or

public authority. Secondly, it is for the enforcement of basic human rights of weaker sections of the community

who are downtrodden, ignorant & whose fundamental & constitutional rights have been infringed. And, it must

not be frivolous litigation by persons having vested interests.

2 Black’s Law Dictionary.

3 AIR 1982 SC 1473.

4 AIR 1982 SC 149.


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equity in exercise of extraordinary jurisdiction, he should approach the court not only with

clean hands but with clean mind, heart & with clean objectives.

In this case, neither public injury or wrong has been caused to the appellant nor any of her

fundamental or constitutional right been infringed. Moreover the petitioner has approached

the court challenging the constitutional validity of § 3(2)5 of MTPA, 1971 on the ground that

it violated the fundamental right of a person to life under Art. 21 of the Constitution of India,

with an objective of getting judgement in her favour that means permitting the appellant to

abort her child. But by doing so what message will it impart to the society? That not to give

birth to any child who is less than perfect in future, even if he/she is capable of leading a

normal life and there might be chances that with the passage of time he/she may not face any

sort of problem in this era of technology. I question what is the point of killing such child?

Don’t they have any right to survive and see the light of the day? It must be appreciated that a

civilized society & welfare state must consider the rights of the unborn who are

defenceless individuals incapable of taking decisions or making informed choices about their

right to life. We must give them chance to live and we never know what talent they may bear.

These are very special and we must respect and support them and not kill them. If today the

court delivers its judgement in favour of abortion only on this basis then it would be a black

day in the history of India. They have every right to live and right their own destiny, and thus

I object that the PIL filed by the petitioner on this ground is not at all justifiable nor it is in

the interest of public.

5 Ibid at pp 13, 18.


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2. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION 3(2) OF THE

MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

It is humbly submitted before the Hon’ble Court that challenging the constitutional validity of

§ 3(2) of the Medical Termination of Pregnancy Act, 1971 is not justifiable.

§ 3126 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971

where all the restrictions imposed therein, including the time limit of 20 weeks, other than the

ones to ensure good medical conditions, infringe the right to abortion & the right to health,

which emanate from right to life as guaranteed by Art. 21 of the Constitution. Any law

forbidding an abortion under good medical conditions is immoral & in addition

unconstitutional, for it violates her right to control her property - her body as wells her life,

liberty & happiness.

The MTPA, 1971 permits abortion to be performed only when the pregnancy poses a risk to

the life of the pregnant woman, or, of grave injury to her physical or mental health, or, when

there is a substantial risk of the child being born with physical or mental abnormalities so as

to be seriously handicapped. A registered medical practitioner may terminate the pregnancy

up to twelve weeks of gestation but where the period is between twelve to twenty weeks, the

opinion of two registered medical practitioners is required. The limit of twenty weeks may

be crossed only when the procedure is performed to save the life of the woman.

Importantly, pregnancy that results from rape or failure of a contraceptive device between a

married couple is viewed as causing grave injury to the mental health of the woman.

The Nikita Mehta7 case has given rise to a raging debate on abortion laws in the country. In

this case the gestational period had progressed much beyond the prescribed period & was past

twenty five weeks. The petitioners pleaded that the defect in the heart of the unborn child was

detected at a late stage. The Mumbai high court held that no categorical opinion of experts

had emerged to state that the child would be born with serious handicaps. The court thus

denied recourse to medical termination of the pregnancy & an opinion emerged that

6 Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good

faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a

term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be

punished with imprisonment of either description for a term which may extend to seven years, and shall also be

liable to fine.7 Nikita Mehta v. State of Maharashtra.


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terminating the life of a viable unborn on grounds of possible handicap is akin to mercy

killing.

We also need to consider whether a further extension would lead to a possibility of obnoxious

agreements between the woman, her family & the physician to terminate the pregnancy if the

baby is likely to be born less than perfect, even if such imperfection may be accommodated

with little effort & is not life threatening? It must be appreciated that a civilized society &

welfare state must consider the rights of the unborn who are defenceless individuals

incapable of taking decisions or making informed choices about their right to life. In fact the

state must act as its parent to step in & protect its life. The society certainly does not suggest

termination of the life of handicapped adults, then why must it take a harsh stand against

vulnerable individuals who are unborn babies?

The next issue is the precise determination of what constitutes a malformation & what may

be termed as a severe mental or physical deformity. With the growth of science & medicine

newer conditions are being described as diseases or deformities. At the same time, new cures

are also emerging. So what needs to be viewed as a handicap & what need not becomes

important. Let us not forget those people who despite being severely handicapped have made

outstanding contributions to society, for example Dr. Stephen Hawking, the world

renowned scientist who suffers from extremely debilitating motor neuron disease & Ludwig

van Beethoven, one of the greatest music composers of all times despite his deafness. At that

time, had there been mechanisms to detect such disabilities in the foetus, these people may

never have been born. In other words, we cannot completely ignore the possibility of

committing grave mistakes by extinguishing potentially great life with our limited

understanding of the future & our exaggerated fear of deformity. Advancement in

medical science bestows great power on humanity that must be used for noble causes.

Unfettered or arbitrary misuse of such power may lead to grave consequences for the society

on multiple fronts.

Indian constitution says every person in India has the right to live & no one can

terminate one's life without court's permission. Indian abortion law doesn't permit

termination of pregnancies after 20 weeks unless it is fatal to mother.

The next question that arises is why the cut-off must be marked at twenty weeks? The

answer lies in the fact that the baby becomes viable at this stage. In other words, the baby is

no longer indispensably dependant on its mother’s body & stands a chance of survival upon


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delivery, albeit with suitable aids at this premature stage. As it grows, it becomes more &

more capable of independent survival & from seven months of gestation onwards, the

chances of its survival upon birth become bright.

Thus, in addition to state interest, the interests of the fully formed unborn child at this stage

become noteworthy. The unborn find explicit or implicit protection through many

international & national laws. The United Nations Convention on the Rights of the Child8

recognized the need for special protection of children before & after birth on account of

their physical & mental immaturity.

In this case, the appellant wants abortion but only because the child to be born will born with

a hole in heart. A person with a hole in heart can live normal life. Now-a-days after a surgery,

a pacemaker can be planted in the heart, battery of which lasts for 10 years & after 10 years

again one has to undergo surgery. I give an example of a case:

Jairaj Shah was staying at Juhu in Mumbai with his wife, Harina, had the same problem in

1972, but they decided to give birth to the child. Doctors estimated expenses of surgery was

estimated to 1.50 Lacs at that time (1971). Family of Jairaj & Harina gave them some money;

some religious trusts also donated the remaining amount. When the child turned 10, he was

operated & pacemaker was kept in the heart. Now the child9 is 36 years old & is healthy.

In this case, it sounds as if the appellant want a child but they are not ready to face any

challenge. For them, the above case may force them to think again.

Many people don't realize that abortion is actually very dangerous procedure. While

techniques are improving, there is still a high probability of negative physical side-effects.

Also there are almost certain negative psychological side-effects. Abortion is an unnatural

process that interrupts one of the primary functions of women’s body. A woman's body

naturally resists the abortion, which causes physical & emotional problems. One of the most

disturbing things about this is that many women aren't informed about these side-effects. 87%

hospitalized women were ones with complications with legal abortion, & 91% had treated

patients with complications from legal abortions. There are several doctors who reported

patients dying from legally induced abortions. Either abortion is induced or spontaneous it

8 “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including

appropriate legal protection, before as well as after birth”.9 Jayesh.


http://www.steadyhealth.com/encyclopedia/Procedure

19

independently & significantly increased the risk of subsequent development of the

secondary infertility. Here the expert committee were against the abortion from which we

can derive that if abortion would have took place then there might have been risk to the life of

appellant or some minor risks.

Here, they know with what problem, their child will born. What if the same problem may be

detected after the birth? Even if we keep legal issue aside, morally too, they should not go for

abortion. And challenging the validity of § 3(2) of the MTPA is in no way justifiable.


http://www.steadyhealth.com/encyclopedia/Infertility

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3. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A PERSON TO LIFE

UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA?

It is humbly submitted before the Hon’ble Court that there is no violation of fundamental

right of a person to life whatsoever under Art 2110 of the Constitution of India of the

appellant.

The Art. 21 of Indian constitution provide right to life & right to privacy & The Art. 6(1) of

the International Covenant on Civil & Political Rights prohibits the arbitrary deprivation of

life. But there are some controversial issues related to this supreme right. One such issue is

the question of Right to abortion. Among other rights of women, it is believed that every

mother has a right to abortion, it is a universal right. But the rights of the mother are to be

balanced with the rights of the unborn. Earlier the right to abortion was not permitted & it

was strongly opposed by the society. The termination of pregnancy was termed to be a

murder of the foetus. But due to the change in time & technology, nowadays this right has

been legally sanctioned by most of the nations after the famous decision of Roe Vs Wade11

by the US Supreme Court in this case the Court held that a mother may abort her pregnancy

for any reason, up until the “point at which the foetus becomes ‘viable’”.

In the case of Suchita Srivastava12, the Court held that there is no doubt that a woman’s right

to make reproductive choices is also a dimension of “personal liberty” as understood under

Art. 21 of the Constitution of India. But there is also a “compelling State Interest” in

protecting the life of the prospective child and, therefore the termination of the pregnancy

could only be permitted under the condition specified in the MTPA, 1971 which are to be

viewed as reasonable restrictions placed on the exercise of reproductive choices.

§ 3 of the MTP Act said that pregnancy can be terminated if:

# Therapeutic indication: in order to prevent injury to the physical or mental health of the

woman.

# Eugenic indication: in view of the substantial risk that if the child were born, it would suffer

from such physical or mental abnormalities as to seriously handicap.

10 Article 21 lays down that no person shall be deprived of his life or personal liberty except according to

‘procedure established by law’.11 410 U.S. 113 (1973).

12 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.


21

# Humanitarian indication: as the pregnancy is alleged by a pregnant woman to have been

caused by rape.

# Social indication: as the pregnancy has occurred as result of failure of any contraceptive

device or method used by married woman or her husband for the purpose of limiting the

number of children.

# The continuance of the pregnancy would involve risk, greater than if the pregnancy were

terminated, of injury to the physical or mental health of the pregnant woman

# The termination of pregnancy is to be carried out in a government hospital or at a place

approved by the government & two medical practitioners are necessary if the pregnancy is

more than 12 weeks but less than 20 weeks duration; for less than 12 weeks one medical

practitioner can terminate it.

# The consent of woman alone is required if she above 18 year of age, but if she is a minor or

lunatic, consent of the guardian is necessary.

§ 312 of the Indian Penal Code read with the Medical termination of Pregnancy act, 1971

where all the restrictions imposed therein, including the time limit of 20 weeks, other than the

ones to ensure good medical conditions, infringe the right to abortion & the right to health,

which emanate from right to life as guaranteed by Art. 21 of the Constitution & also violates

her liberty & happiness. The Supreme Court of India has said that the right to privacy is

implicit in Art. 21 of the Constitution & a right to abortion can be read from this right.

Now when we look into the facts of this case we can derive from the above mentioned act

that now at this stage she cannot undergo abortion legally.

The question that crops up is that why she wants to undergo abortion even when the

expert committee has made it clear that there would be no risk to her & even her child

is capable of living normally with the assistance of pace maker? The doctor informed

appellant in the 20th week that there might be some problems or complications for the

appellant to conceive again & therefore, advised her to have an abortion immediately. In the

22nd week she agreed to undergo abortion only because of the fact that she may have

problems in conceiving again in future & child will face some serious problems & his quality

of life would be poor. But the expert committee appointed by the Hon’ble Saurashtra High

Court in its report made it clear that the said abnormality would not in any manner

whatsoever hamper or affect the appellant’s health or her ability to conceive in future &

recommended against abortion of the foetus at such an advanced stage of pregnancy since the


22

child would be capable of leading a normal life with the assistance of an artificial pacemaker.

On this basis the Hon’ble court held that the case was not an exceptional one to consider the

compassionate plea of the appellant on medical grounds. Now when there is no risk to life of

the appellant & child is capable of living a normal life, then what is the point of abortion? It

is just that now the appellant is running away from her responsibility. She doesn’t want a

child who is just less than perfect & thus wants that child to be killed. Earlier till 22nd week

she wanted child, but after that she changed her mind only because she came to know about

the problem of the child.

I would like to highlight again the examples of Dr. Stephen Hawking, the world renowned

scientist who suffers from extremely debilitating motor neuron disease & Ludwig van

Beethoven, one of the greatest music composers of all times. If at that time, had there been

mechanisms to detect such disabilities in the foetus, these people may never have been born.

And in this case as already mentioned the child is capable of leading a normal life. Isn’t it

violating the provisions of Art. 1413 of the Constitution of India? Won’t it lead to any

discrimination? The child have every right to live & we must consider the rights of the

unborn who are defenceless individuals incapable of taking decisions or making informed

choices about their right to life.

Art 14 bars discrimination & prohibits discriminatory laws. And decision in favour of

abortion will lead to discrimination to this child. Our law protects the rights of unborn child

& of disabled too. Like § 2014 of the Hindu Succession Act, 1956, § 1315 & § 2016 Transfer Of

Property Act, 1882 and § 617 of the Limitation Act, 1963 recognises the rights of a child in

the womb.

13 Article 14 outlaws discrimination & guarantees equality before law to all persons. It embodies the principle of

“non-discrimination”.

14 A child who was in the womb at the time of the death of an intestate & who is subsequently born alive shall

have the same right to inherit to the intestate as if he or she had been born, before the death of the intestate, &

the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.15 Transfer for benefit of unborn person. - Where, on a transfer of property, an interest therein is created for the

benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same

transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of

the remaining interest of the transferor in the property.16 When unborn person acquires vested interest on transfer for his benefit.- Where, on a transfer of property, an

interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary

intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the

enjoyment thereof immediately on his birth.


23

The appeal of the appellant for the violation of her fundamental right of a person to life under

Art 21 is thus not justifiable. We can see here that it’s now illegal to allow her for abortion &

if it will be allowed then what about the right to life of that unborn baby? An unborn child

aged five months onwards in the mother's womb till its birth can be treated as equal to a child

in existence. The unborn child to whom the live birth never comes can be held to be a 'person'

who can be the subject of an action for damages for his death. A person means a human being

regarded as an individual & an individual's body: concealed on his person. Therefore, human

foetus to which personhood could be attributed must not be destroyed only on this ground of

abnormality; this child has every right to live & see the light of the day. Thus, from the above

facts we can derive that an unborn child is entitled to right to life. There is no kind of

violation to the rights of appellant but her wish to abort the baby will definitely infringe the

right of that unborn baby to life.

17 Where a person entitled to institute a suit or make an application for execution of the decree is, at the time

from which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application

within the same period after the disability has ceased. Explanation to § 6 reads thus: “For the purpose of this

section, ‘minor’ includes a child in the womb”.


24

4. WHETHER IS THERE ANY NEED FOR THE RECONSIDERATION OF THE CASE OF GIAN KAUR

V. STATE OF PUNJAB?

It is humbly submitted before the Hon’ble Court that there is not at all any need to reconsider

the case of Gian Kaur v. State of Punjab18, as the facts of the case of Gian Kaur is altogether

different & deals with suicide/abetment of suicide somewhere linked with right to life under

Art. 21. Under Art. 21 the term life has a very expansive meaning & we cannot bring any

relevancy from the case of Gian Kaur by linking both the cases, as this case is about abortion

linked with right to life.

In India, the sanctity of life has been placed on the highest pedestal. “The right to life” under

Art. 21 of the Constitution has received the widest possible interpretation under the able

hands of the judiciary and rightly so. This right is inalienable and is inherent in us. It

cannot and is not conferred upon us. This vital point seems to elude all those who keep on

clamouring for the "Right to Die".

The stance taken by the judiciary in this regard is unquestionable.

In Gian Kaur vs. State of Punjab, a five judge Constitutional Bench held that the "right to

life" is inherently inconsistent with the "right to die" as is "death" with "life". In furtherance,

the right to life, which includes right to live with human dignity, would mean the existence of

such a right up to the natural end of life. It may further include "death with dignity" but such

existence should not be confused with unnatural extinction of life curtailing natural span of

life. In progression of the above, the constitutionality of Section 309 of the I.P.C, which

makes "attempt to suicide" an offence, was upheld, overruling the judgment in P.

Rathinam's19 case.

The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing

and the like amount to unnatural ebbing of life. This decision thereby

overruling P.Rathinam's case establishes that the “Right to life” not only precludes the “right

to die” but also the “right to kill.”

18 AIR 1996 SC 946.19 P.Rathinam v. Union of India, AIR 1994 SC 1844: (1994) 3 SCC 394.


25

Interestingly in P.Rathinam's case, even when a Division bench affirmed the view in M.S

Dubal v. State of Maharashtra20 that the “right to life” provided by the Constitution may be

said to bring into its purview, the right not to live a forced life, the plea that euthanasia be

legalized was discarded. It was held that as euthanasia involves the intervention of a third

person, it would indirectly amount to a person aiding or abetting the killing of another, which

would be inviting Section 30621 of the I.P.C.

In Naresh Marotrao Sakhre v. Union of India22, Lodha J. affirmed that "Euthanasia or

mercy killing is nothing but homicide whatever the circumstances in which it is affected."

The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural

termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or

euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show the

extent of credibility accorded to the sanctity of life and the right to life as a whole. This apart,

the decriminalization of euthanasia is unworkable in the Indian perspective, even on

humanitarian grounds, as it involves a third person. It is humbly submitted that the

implementation of the above mechanism in India is utopian and thus the two situations

incomparable.

Hon’ble High Court of Saurashtra placed its judgement based on the report of expert medical

committee who were against the abortion as there was no harm whatsoever to the appellant,

also the child was capable of leading a normal life with the assistance of artificial pacemaker.

Thus, the appeal of abortion in this case is no where relevant as it will lead to violation of the

right of that unborn defenceless child who is very much capable of leading a normal life and

reconsidering the case of Gian Kaur would be mere waste of time of the court as there is no

point of linking both the cases.

20 1987 Cri L J 743 (Bom.)

21 If any person commits suicide, whoever abets the commission of such suicide, shall be punished with

imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.22 1995 Cri L J 96 (Bom.).


26

5. WHETHER THE FILING OF SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE


It is humbly submitted before the Hon’ble Court that the filing of Special Leave Petition

under Art 13623 of Constitution of India is not justifiable.

Special leave petition means that you take special permission to be heard in appeal against

any High Court/tribunal verdict. Usually any issue decided by the State High Court is

considered as final, but if there exist any constitutional issue or legal issue which can only be

clarified by the Supreme Court of India then, this leave is granted by the Supreme Court &

this is heard as a Civil or Criminal appeal as the case may be. Going to the Supreme Court in

appeal should not be considered a matter of right by anyone but it is matter of privilege which

only the Supreme Court will grant to any individual if there exist an important constitutional

or legal issue involved in any case that was not properly interpreted by the concerned High

Court against whose judgment you approach the Highest court of the country not otherwise.

In this case, Hon’ble High Court of Saurashtra dismissed the writ petition earlier on the

ground that the law of the land did not permit termination of pregnancy beyond the 20 weeks

& also remarked that, in view of the expert committee report, the case was not an

exceptional one to consider the compassionate plea of the appellant on medical grounds.

This case would have been exceptional if:

It would have hampering the health of the appellant.

There would have been some serious problems to the child.

There would have been law for this & the judgement of the court would have been

against it.

Substantial and grave injustice has been done.

The Supreme Court has described the nature of its power under Art. 136 as follows:

23 Under Article 136 the Supreme Court is authorized to grant in its discretion special leave to appeal from (a)

any judgment, decree, determination, sentence or order, (b) in any case or matter, (c) passed or made by any

Court or tribunal in the territory of India. The only exception to this power of the Supreme Court is with regard

to any judgment, etc. of any court or tribunal constitutional by or under any law relating to the Armed Forces.


27

“The exercise of jurisdiction conferred by Art. 136 of the Constitution on this Court is

discretionary. It does not confer a right to appeal on a party to litigation; it only confers a

discretionary power of widest amplitude on this Court to be exercised for satisfying the

demands of justice. On the one hand, it is an exceptional power to be exercised sparingly,

with caution and care and to remedy extraordinary situations or situations occasioning gross

failure of justice; on the other hand, it is an overriding power whereunder the court may

generously step in to impart justice and remedy injustice”.

The power has been held to be plenary, limitless, “adjunctive” and unassailable on the

grounds of unconstitutionality. A word of caution was sounded in M.C. Mehta v. Union of

India24 to the effect that judicial discretion has to be exercised in accordance with law and set

legal principles. That means it cannot go ultra vires.

The Supreme Court has observed in Pritam Singh v. The State25, that the power under Art.

136 –

“is to be exercised sparingly and in exceptional cases only, and as far as possible, a more or

less uniform standard should be adopted in granting special leave in the wide range of matters

which can come up before it under this Article.”

The Court has emphasized:

“The only uniform standard which in our opinion can be laid down in the circumstances is

that Court should grant special leave to appeal in those cases where special circumstances are

shown to exist”

In conclusion, the Court has said:

“Generally speaking, this court will not grant special leave, unless it is shown that

exceptional and special circumstances exist, that substantial and grave injustice has been

done and that the case in question presents features of sufficient gravity to warrant a review

of the decision appealed against”.

But here in this case,

i. It is neither hampering the health of the appellant nor will she face any problem in

conceiving in future.

24 (2004) 6 SCC 588, 613 : AIR 2004 SC 4618.25 AIR 1950 SC 169 : 1950 SCR 453.


28

ii. Further child is also capable of living a normal life with the assistance of an artificial

pace maker.

iii. There is no law for termination of pregnancy beyond 20 weeks if it is not hampering

the health of the woman.

iv. There has not been any grave injustice done, the Hon’ble High Court of Saurashtra

observed that there is no risk to the life of appellant nor any serious problem to the

child so as to consider it as an exceptional case, and the expert committee also

recommended against the abortion at such an advanced stage as abortion may cause

risk to the life of appellant.

Thus, after going through the facts of this case we can see that it is not a

special/important/exceptional case which requires any sort of special attention. Thus,

the filing of SLP under Art 136 of the Constitution of India is not justifiable.


29

PRAYER FOR RELIEF

In light of the facts stated, arguments advanced & authorities cited, the Respondent, humbly

prays before the Honourable Court, to be graciously pleased to:

I. Quash the writs filed by the petitioners in the Hon’ble court of law since there

is no violation of the fundamental rights.

II. Maintain the status quo of the impugned Act since there is no violation of the

rights as alleged by the petitioners.

III. Pass any other order, which the court may deem fit in light of justice equity &

good conscience.

All of which is most humbly prayed

Counsel for the Respondent


113507179 Mol s Final Memorial

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