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This document is about the petitioner and respondent memo for medical termination of pregnancy act in subject with constitutional validity
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Writ Petition before the Supreme Court of Estancia
Written Submission On Behalf of the Petitioners
Writ Petition (Civil) No. ____of 2022
Mrs Anandhi ………………………… Petitioner
V.
Union of Estancia ……………………………… Respondent
Most respectfully submitted before the Hon’ble Chief Justice and companion Judges of the Supreme Court of Estancia
1 Table of abbreviations 3
2 Index of authorities 4
3 Statement of jurisdiction 5
Statement of facts
5 Statement of issues 7
Summary of arguments
7 Arguments advanced 10
8 Prayer 16
● The Constitution of India, 1950 ● Indian Penal Code, ● Medical Termination of Pregnancy Act, 1971
CASES REFERRED:
● Kharak Singh V. State of U.P. ● Suchita Srivastava & Anr. V. Chandigarh Administration (2009) ● Dr. V K Krishnan V. State of Kerala (2010) ● Anil Kumar Malhotra V. Ajay Pisricha (2017),
BOOKS:
● The Constitution of India, ● Indian penal code, 1860
ONLINE WEBSITES:
● https://www.legalserviceindia.com/articles/adp_tion.htm ● http://www.legalservicesindia.com/article/299/Right-of-Women-to-Terminate-Pregna ncy.html ● https://clpr.org.in/blog/abortion-jurisprudence-in-the-supreme-court-of-india-is-it-the womans-choice-at-all/#:~:text=The%20Court%20held%20that%20%E2%80%9Ca,he r%20to%20terminate%20her%20pregnancy. ● https://theprint.in/judiciary/women-dont-have-absolute-right-to-terminate-pregnancy modi-govt-tells-supreme-court/293062/
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed (2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
1. Whether a woman has rights under the Constitution to retain or terminate her pregnancy?
Yes, Under the Constitution, a woman has the option of keeping or terminating her pregnancy. The right to abortion is a type of private right that is declared to be a continuation of the right to life under Article 21. It may also be defined as a woman's complete right to her reproductive organs. Because the right to life encompasses the right to enjoy life with all of one's limbs and faculties, it follows that the right to reproduction and the right to manage reproductive organs are part of the larger idea of the right to life. The right of a woman to her private life has been the basis on which a number of international bodies have upheld the right of a woman to have an abortion.
2. Whether the Medical Termination of Pregnancy Act and other Estancia laws are violative of a woman’s right to terminate her pregnancy?
Yes, The medical termination of pregnancy act, as well as other Estancia laws, violates a woman's right to her pregnancy. The right to self-determination, the right to have control over her body, and the right to abortion have all been severely curtailed by legislative limitations. As a result, it is proposed that women be granted the freedom to govern their bodies and, as a result, the right to have or not have children. As a result, the medical termination act and other Estancia legislation violate a woman's right to an abortion.
1. Whether a woman has rights under the Constitution to retain or terminate her pregnancy?
Yes, A woman has the right to keep or terminate her pregnancy under the Constitution. The right to abortion is a form of private right that, according to Article 21, is a continuation of the right to life. It can also refer to a woman's complete control of her reproductive organs. Because the right to life includes the right to enjoy life with all of one's limbs and faculties, the right to reproduce and the right to regulate reproductive functions are inextricably linked. A number of international authorities have affirmed the right of a woman to have a private life on the basis of her right to privacy.
The first point of debate is Bodily Sovereignty. No one should compel a woman to bear or terminate a pregnancy against her choice; she has the only right to make decisions about what happens to her body. It is widely thought that every woman has the right to an abortion, and that this right is universal. Individual rights, such as the right to life, liberty, and the pursuit of happiness, support a woman's right to have an abortion. The reproductive and sexual health of a woman influences her reproductive decisions. Reproductive rights are widely acknowledged as essential for furthering women's human rights and supporting development.
In Kharak Singh vs. State of U.P^1. and others, the Supreme Court clearly read article 21 and acknowledged that a person has complete control over his bodily organs and 'person.' Another right, the right to abortion, is developed as a result of the right to reproduction and control over one's reproductive organs. Abortion is a fundamental reproductive right for women, and they have the freedom to choose whether or not to bring their pregnancy to term without being forced by the government. Abortion should be viewed as a fundamental reproductive right that
(^1) Kharak Singh vs The State Of U. P. & Others on 18 December 1963 AIR 1295, 1964 SCR (1) 332
all women should be entitled to exercise without government or societal restrictions. Because a pregnancy has an impact on a woman's personal and economic well-being, she has a fundamental right to decide whether the pregnancy should be permitted to develop or terminated by abortion. The right to abortion is a form of private right that, according to Article 21, is a continuation of the right to life. It can also refer to a woman's complete control of her reproductive organs. In 1965, the Supreme Court of the United States of America established the right to privacy and overturned the prohibition on birth control in the case of Griswold v. Connecticut. Eight years later, in Roe v. Wade, the Supreme Court determined that the right to privacy extended to abortions. Article 12 of the Universal Declaration of Human Rights, Article 17 of the Covenant on Civil and Political Rights, Article 11 of the American Convention, and Article 8(1) of the European Convention all safeguard the right to private and family life. Decisions about one's body, particularly one's reproductive capacity, are squarely in the domain of private decision-making, according to the European Commission of Human Rights' judgments, such as in the cases of Bruggemann and Scheuten v. the Federal Republic of Germany and Paton v. the United Kingdom.
The Madras High Court supported women's freedom to choose in the context of continued pregnancy in Suchita Srivastava & Anr. v. Chandigarh Administration (2009)^2 and Dr. VK Krishnan v. State of Kerala (2010)^3. The Supreme Court ruled in the Suchita Srivastava case that the state must protect women's reproductive rights as part of their right to personal independence, dignity, and privacy (Article 21). In the VK Krishnan case, the same was upheld.
(^2) Suchita Srivastava & Anr vs Chandigarh Administration on 28 August, 2009
(^3) Dr.V.K.Krishnan vs State Of Kerala
3. Whether the Medical Termination of Pregnancy Act violates the father’s right to retain the unborn child?
The petitioner has filed the writ petition to claim her right to terminate the pregnancy and to seek the supreme court that the medical termination of pregnancy Act is violating the petitioners right of choice under the right to life and personal liberty. Here the chief issue is that the petitioners right has been obstructed by the medical termination of pregnancy Act so to clear the obstruction and to use her right to terminate the pregnancy only the petitioner has filed the writ petition in the supreme court.
While consent of the woman is an essential requirement for termination of her pregnancy as stated under Section 3(4)(2)(b),the MTP Act does not require the husband’s consent for terminating the pregnancy of a major woman. In Anil Kumar Malhotra v. Ajay Pasricha^4 the Supreme Court dismissed the appeal against the Punjab and Haryana High Court’s decision in Dr. Mangla Dogra v. Anil Kumar Malhotra^5 , rejecting a suit for damages filed by the husband against his wife and doctors for terminating his wife’s pregnancy without his consent on the reasoning that the MTP Act does not require the husband’s consent for an abortion. The Gujarat High Court in Nirav Anupam Bhai Tarkas v. State of Gujarat^6 , upheld dismissal of a criminal complaint filed by a husband against his wife and her family for terminating her pregnancy despite his opposition, on the ground that his consent was not required for the termination
Termination of pregnancy without a woman’s consent is a non-bailable offence under Section 313 of IPC. A strict approach has been adopted by the Court while considering bail applications or petitions for quashing criminal prosecution filed in such cases. The Orissa High Court in Binod Bihari Naik v. State of Orissa^7 dismissed a doctor’s petition for quashing of criminal prosecution for allegedly terminating a pregnancy without the woman’s consent as a prima facie case had been established against him. So the consent of the women is important in the termination of the pregnancy and here the petitioner has a right to terminate her pregnancy which is a fundamental right under article 21 of the constitution.
(^4) Anil Kumar Malhotra v. Ajay Pasricha (^5) Dr. Mangla Dogra v. Anil Kumar Malhotra (^6) Nirav Anupam Bhai Tarkas v. State of Gujarat (^7) Binod Bihari Naik v. State of Orissa
4. Whether the Medical Termination of Pregnancy Act violates the right to life of an unborn child?
Our Constitution under Article 21 recognized the Right to Life and Personal Liberty. It provides that “No one shall be deprived of life and liberty except according to the procedure established by law”. However, right to life of unborn is in conflict with right to abortion.It is a woman's individual rights, right to her life, to her liberty, and to the pursuit of her happiness, that sanctions her right to have an abortion. A women's reproductive and sexual health and shape her reproductive choices. Reproductive rights are internationally recognized as critical both to advancing women's human rights and to promoting development. In recent years, governments from all over the world have acknowledged and pledged to advance reproductive rights to an unprecedented degree. Formal laws and policies are crucial indicators of government commitment to promoting reproductive rights. Each and every woman has an absolute right to have control over her body, most often known as bodily rights.
In Re Suchitra Srivastava vs Chandigarh Administration the Supreme Court has held that the personal liberty in article 21 includes the right to make reproductive choices ( to produce schild or not to produce) and here the pregnancy of the women was 19 weeks and then the high court has held that though she is an orphan using the doctrine of parens patriae to terminate the pregnancy and the Supreme Court held that the women has the right to choice as an personal right as understood under article 21 of the constitution and the Supreme Court also up held the same decision of the high court.
So the petitioner wanted to terminate her pregnancy which is an inherent right through the article 21 of the Constitution and the main claim of the petitioner is to allow to perform her fundamental right. In re Shri Bhagwan Katariya And Others vs State of M.P^8 shows that a woman has an absolute right to abortion and no one can take away this right from her. The Judiciary has been playing a vital role in securing these rights to women. Right to abortion is a fundamental right of privacy.
(^8) Shri Bhagwan Katariya And Others vs State of M.P
In light of the facts of the case, the issues raised, arguments advanced and authorities cited, Counsels on behalf of the Petitioner humbly pray before this Hon‟ble Supreme Court of Estancia to kindly consider and pleaded that:- ● The Constitution protects a woman's right to keep or terminate her pregnancy. ● The Medical Termination of Pregnancy Act, as well as other Estancia laws, infringe on a woman's right to terminate her pregnancy. ● The woman's consent is required for the termination of her pregnancy, while the husband's consent is not required for the termination of a major woman's pregnancy. ● Every woman should have the right to terminate a pregnancy, and the petitioner's freedom to choose whether or not to terminate the pregnancy should be respected.
AND/OR
Pass any other order which the bench deems fit in the best interest of Justice, Equity and Good Conscience, and for this act of kindness the Counsels on behalf of the Petitioners as in duty bound shall forever pray.
_All of which is respectfully submitted
Sd/- Submitted on behalf of the Petitioner_
