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TEAM CODE : C
9TH ALL INDIA SHIVAJI UNIVERSITY MOOT COURT,
ADR COMPETITIONS AND VIDHI MELA 2024
ON BEHALF OF RESPONDENT
BEFORE THE HON’BLE SUPREME COURT OF SINDHIA
IN THE MATTER OF
X. ...................APPELLANT
Vs. THE PRINCIPAL SECRETARY, HEALTH AND .................RESPONDENT FAMILY WELFARE DEPARTMENT, GOVERNMENT OF ANAND STATE AND ANOTHER.
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE
CONSTITUTION
PETITION OF BEHALF OF RESPONDENT
COUNSEL APPEARING ON BEHALF OF APPELLANT
On behalf of Respondent
TABLE OF CONTENT
SR. NO. NAME OF CONTENT PAGE NO.
1 List of Abbreviations 03
2 Index of Authorities 04
3 Cases Referred 05
4 Statement Of Jurisdiction 06
5 Statements Of Facts 07
6 Statement Of Issue 08
7 Summary of arguments 09 - 10
8 Argument Advanced 11 - 26
9 Prayer 27
On behalf of Respondent INDEX OF AUTHORITIES
1. Acts referred: Sr. No. Acts Year
- The Constitution of India 1950
- Hindu Succession Act 1956
- Hindu Adoption & Maintenance Act 1956
- The Maternity Benefits Act 1961 5 Maternity Termination Rules 2003
- Maternity Benefit Act 2017 2. Books Referred:
- K.D Gaur, Textbook on Indian Penal Code, 6th^ edition, Universal law publishing
- J.N Pandey , The Constitutional Law of India, 60th^ Edition, Central law agency
- V.N Shukla’s ‘Constitution of India’
- M.P Jain’s ‘Constititution of India’
- Dr. V.N Paranjape on Jurisprudence 3. Online Legal Database ▪ Manupatra ▪ SCC Online ▪ Live Law ▪ Indian Kanoon ▪ Casemine ▪ lawctopus CASES REFERRED
- State of W.B v Subodh Gopal Bose
- M. B. Cotton Assn. Ltd. v Union of India
- Ajay Canu v Union of India
- Mr X v Hospital Z
On behalf of Respondent
- Olga Tellis v Bombay Municipal Corporation
- Cry for life society v Union of India
- Depika Jagatram Sahni v Union of India
- Gian Kaur v State of Punjab
- P. Rathiram Case
- Chandigarh Administration 2009
- Madras v V. G. Row
- Aruna Ramchandra Shanbugh v Union of India
- State of Gujarat v Mirzapur Moti Kureshi Kassab
- Parmanand Katara v Union of India
On behalf of Respondent STATEMENT OF FACTS
The Appellant 'X' (name is not disclosed due to her privacy restriction), is the resident of Sindhia, is a consenting adult female who is unmarried and is 27 years of age.
The Appellant was in a consensual relationship with her partner. After a while, the Appellant was deserted by her partner. Following her desertion, the Appellant discovered she was 22 weeks pregnant.
The Appellant became mentally disturbed after discovering her pregnancy. Due to her financial situation and social stigma the Appellant wanted to terminate her pregnancy.
For this matter the appellant approached the court and filed a writ petition in the State of Anand High Court to permit her to terminate her pregnancy. The High Court of Anand state did not provide any reliefs to the Appellant.
The High Court denied the Appellant's request on the basis of Rule 3B of the Medical Termination of Pregnancy Rules, 2003 , which allows married women to have an abortion after 20 weeks.
Aggrieved with the Judgment given by the High Court of Anand State the appellant then filed a special leave petition in the Supreme Court of Sindhia.
On behalf of Respondent ISSUES RAISED
1. ISSUE RAISED I: Validity of the exclusion of unmarried and single women under Rule 3B of the MTP Rules, 2003. 2. ISSUE RAISED II: Whether the rule is violative of Article 14 of the Constitution of Sindhia.
On behalf of Respondent ISSUE NO. II ; Whether the rule is violative of Article 14 of the Constitution of Sindhia? A. There is no violation of Art. 14 B. Reasonable classification is permitted C. State is empowered to make laws for women D. Interest of Society E. State as a parental authority F. Objectives of MTA Act 1971
On behalf of Respondent ARGUMENTS ADVANCED ISSUE RAISED NO I: Validity of the exclusion of unmarried and single women under Rule 3B of the MTP Rules, 2003. "The right to life is the first among human rights"^2 The right to life is the belief that a human or other animal has the right to live and, in particular, should not be killed by another entity. A. Fundamental rights are not absolute: As rightly said by Wills, “ If people were given complete and absolute liberty without any social control the result would be ruined .”^3 As said by Jeremy Bentham , object of law is, "To achieve greatest happiness of the greatest number of People”.^4
1. Present Law not only represents intent of state legislators but also will of the majority of people who are living in the State. As even said by Dr. Ambedkar who was the chairman of drafting committee that ," fundamental rights could not mean absolute rights. State can directly impose limitations upon the fundamental rights." 2. Fundamental rights are not absolute rights and limits can be imposed on them through valid law. They have reasonable restriction which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries. 3. State of W.B. v Subodh Gopal Bose^5 the court has held that, “None of the fundamental rights is absolute or uncontrolled; for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in clauses (2) to (6) of Art. 19. (^2) Pope Francis (^3) Wills- Constitutional Law and the United States,477. (^4) Jeremy Bentham object of law (^5) 1954 AIR 92, 1954 SCR 587.
On behalf of Respondent
- Bodily Autonomy is a western concept which means " my body is for me: and my body is my own." Bodily autonomy is about the right to make decisions over one's own life and future.
- The right to bodily autonomy is not absolute, as it can be limited by laws and societal norms in certain circumstances.
- In the reference of Chapter 2 of the Constitution Republic of South Africa contains The Bill of Rights. The Constitution of South African (Act 108 of 1996) (7) makes provision for the right to bodily integrity in Section 12. This provision grants a person the right to freedom and security of the person. In particular, Section 12 (2) emphasises the importance of personal autonomy and the self-determination in relation to bodily integrity and states:
- “Section 12 - Everyone has the right to bodily and psychological integrity, which includes the right i. to make decisions concerning reproduction; ii. to security in and control over their body; and iii. not to be subjected to medical or scientific experiments without their informed consent ”^9
- There was consensual sexual intercourse of the appellant with her partner before her desertion. After desertion the appellant had enough time to terminate her pregnancy before 20 weeks, but the appellant was ignorance towards it.
- Thus, here the state has power to restrict the unreasonable termination of pregnancy and to limit the right of the appellant over her bodily autonomy reasonably. D. Responsibility of State to provide livelihood. (^9) Republic of South Africa: The Constitution of the Republic of South Africa No 108 of 1996. Pretoria: Government Printer, 1996. [Google Scholar]
On behalf of Respondent
- Under Art.39 Clause (a) of part IV of the Indian Constitution it is under the statutory obligation of the state to lay down principles of policy for the welfare of the people as per which the state shall, in particular direct its policy towards securing (a) That the citizens, men and women equally, have the right to an adequate means of livelihood.
- Also, as per Art.41 of Part IV of Indian Constitution it is directive principle of state to provide right to work, to education and to public assistance in certain cases.
- In the case of Olga Tellis v Bombay Municipal Corporation^10 ( Pavement Dwellers Case ) the SC held, " Art.39(a) and Art.41 require the state to secure to the citizens an adequate means of livelihood and the right to work."
- In this way there is no any question regarding the violation of right to livelihood of appellant as the state is willing to provide the means of livelihood under above mentioned articles. E. State Policies for welfare of children.
- As per article 39(f) of part IV of the Indian Constitution, "the state shall, in particular direct its policy towards securing" - ( f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and the childhood and youth are protected against exploitation and against moral and material abandonment. Also under Art. 45 of part IV of Indian Constitution the states and individual to provide early childhood care and education for all children and till the complete the age of 6 years. (^10) AIR 1986 SC 180;(1985) 3 SCC 545.
On behalf of Respondent that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”
- Wade and Phillips provide three definitions of the separation of powers: That one branch of government should not carry out the duties of another, and functioning must be independent.
- As observed by Justice Gupta the Constitution does not permit the courts to direct, advice or sermonize other organs of the State in the spheres reserved for them, provided the legislature or executive does not transgress its constitutional limits or statutory conditions.
- Even Attorney General KK Venugopal said, ‘even Jawaharlal Nehru's fear of the Supreme Court becoming the third chamber of Parliament was coming true.’
- Codification of the Law, amendment of the law and removal of the law comes under the exclusive domain of legislation. G. Reasonable restrictions under Art. 19(2)
- Under Art. 19(2), the state is not prevented from making law imposing reasonable restrictions so far as such laws are made in the exercise of interest of the society.
- In the case CRY FOR LIFE SOCIETY V UNION OF INDIA^11 - As per this, when a spermatozoon enters the ovum, fertilization takes place which marks the beginning of biological life of an individual. Formation of a child has to be considered from this Stage where after it obtains all rights of the human being and is entitled to protection afforded to every citizen of India, including right to life.
- It is also contended that abortion is a deliberate ending of life. Every fertilized embryo has got a right of life and it should be protected as that of its mother. The grounds also raised are - an unborn child should be regarded as one of the weakest, the most vulnerable and most defenseless forms of humanity. (^11) WP(C). No. 10130 of 2013(S)
On behalf of Respondent
- Generally the restrictions under Art.19(2) can be imposed by considering the following grounds. i. To prevent the public order. - Public order is synonymous with public peace, safety & tranquility. Public order also includes public safety which means the safety of all members of community. The protection of unborn child also comes under the purview of public order. ii. In the interest of decency or morality of society. - Legality and morality both are interconnected terms. The legislature is free to recognize the degree of harm and may confine its restriction to those cases where need is deemed to be clearest.^12
- "Morality" refers to a code of conduct that would be accepted by anyone who meets certain intellectual and volitional conditions, almost always including the condition of being rational. It is a principle concerning the distinction between right and wrong or good and bad behavior.^13 H. State provides protection to dignity
- A single parent is a person who has a child or children but does not have a spouse or live-in partner to assist in the upbringing or support of the child.
- In today's evolving society , women have become stronger, rising above societal judgment and stigma to achieve greater heights. Single motherhood arises under various circumstances, such as desertion, divorce, childbirth out of wedlock, adoption by an unmarried woman, surrogacy, or IVF, where the mother assumes both parental roles.
- The state has protected the rights of the single mother and the rights are recognized by the law. (^12) Special Courts Bills, Re, 1978 (^13) https://dictionary.cambridge.org/dictionary/english/dictionary
On behalf of Respondent
- In the case of Depika Jagatram Sahni v Union of India^14 the court issued necessary directions and held, " It is statutory obligation of the Centre and the states to provide for nutritional support to the pregnant women and lactating mothers, nutritional support to children and to take steps to identify and provide meals for children who suffered from malnutrition. Government has a constitutional obligation to preserve human life."
- Inspite of the poor financial condition of the appellant, under Art.47 of the Indian Constitution the state is always willing to provide necessary & sufficient nutritious food required for welfare and healthy life of the appellant and also for the upbringing of the child.
- To nurture the nutritional diet and healthy living for children especially for children across the country, the government of India is also implementing several schemes and programs to address various aspect related to nutrition and promoting nutritional diet and healthy living.
- Some of the schemes are as follows:- i. POSHAN Abhiyan ii. Pradhan Mantri Matru Vandana Yojana iii. Pradhan Mantri Poshan Shakti Niramn (PM POSHAN) Scheme J. The right to die cannot be considered as a fundamental right:
- The Right to life does not include Right to die or right to be killed. Art. 21 of the Indian Constitution protect the right to live of every individual irrespective of any discrimination.
- In Gian Kaur v State of Punjab^15 the SC overruled the P. Rathiram v Union of India Case^16 and held that - The "Right to life" under Art.21 of the (^14) AIR 2021 SC 523 (^15) (1996)2 SCC 648 (^16) (1994)3 SCC 394
On behalf of Respondent Constitution does not include "Right to Die" or "right to be killed". "The right to die is inherently inconsistent with the "right to life" as is "death with life".
- Any aspect of life which makes it dignified may be read into Art.21 of the Constitution but not that which extinguish it and is therefore inconsistent with the continued existence of life resulting in effacing the right itself.
- In Chandigarh Administration (2009)^17 , the SC held that, " the right of an unborn child to life and personal liberty is protected under Art.21 of the Indian Constitution. The Court held that the State has a duty to protect the life and health of a pregnant women and her unborn child." Hence it may fairly conclude that - The exclusion of unmarried and single women under Rule 3B of the MTP Rules, 2003 is valid as it has made within the framework of the constitution and it does not violate any of the fundamental rights of the appellant. (^17) (2009)9 SCC 1
