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-MEMORIAL ON BEHALF OF PETITIONER-
I
ICFAI LAW SCHOOL
INTRA MOOT COURT EXAM
THE HON’BLE SUPREME COURT OF MALLIAVAAN.
WRIT PETITION (CIVIL) NO.--- OF ---
MEMORIAL ON BEHALF OF THE PETITIONER
Ms.Uppal........................................................................Petitioner V/s State Of Hyderavaan.................................................................Respondent
MOST RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGE OF THE
SUPREME COURT OF JUDICATURE OF MALLIAVAAN. MEMORANDUM ON BEHALF OF Petitioner And Filed By The Counsel For The Petitioner. Name: Divya Nimbalkar Enrolment No: Batch:
-MEMORIAL ON BEHALF OF PETITIONER-
II
Table of Contents
Index of Abbreviations….......................................................III
Index of Authorities...............................................................IV
Cases...............................................................................................................IV Articles............................................................................................................IV Statute..............................................................................................................IV
Statement of Jurisdiction.........................................................V
Statement of Facts..................................................................VI
Issues Presented................................................................VIII
Summary of Arguments......................................................IX
Arguments Advanced............................................................ 1
ISSUE 1:IS THE PETITION MAINTAINABLE?................................................................ 1
ISSUE 2:WHETHER THE TERMINATION OF PREGNANCY CAN BE ALLOWED
EVEN AFTER THE SAID 20 WEEKS OF PREGNANCY IF SHE IS NOT WILLING TO
CARRY ON WITH HER PREGNANCY?............................................................................... 2
ISSUE 3: WHETHER THE PROVISIONS OF THE MEDICAL TERMINATION OF
PREGNANCY ACT, 1971 IS CONSTITUTIONAL VALIDITY?......................................... 4
Prayer.................................................................................... 17
-MEMORIAL ON BEHALF OF PETITIONER-
IV INDEX OF AUTHORITIES STATUES The Constitution Of India, The Medical Termination Of Pregnancy Act, 1971 CASES Sarmishtha Chakrabortty v. Union of India Tapasya Umesh Pisal v. Union of India & Ors Mrs. X and Ors. v. Union of India and Ors Meera Santosh Pal And Ors vs Union Of India And Ors on 16 January, 2017 Suchita Srivastava v. Chandigarh Admn Priyanka Shukla vs Union Of India And Ors. on 10 July, 2019 Mamta Verma vs Union Of India on 9 August, 2017 JOURNALS Right to Abortion -Manisha Garg Legalize Abortion In India -Chandraveer Singh Bhat Abortion jurisprudence in the Supreme Court of India: Is it the woman’s choice at all?- Shradha Thapliyal Reddy G.B, "Role of Judiciary in protection of Human Rights Of Women", AIR 1999 Journal 148
Books
Black’s law dictionary
-MEMORIAL ON BEHALF OF PETITIONER-
V
STATEMENT OF JURISDICTION
The Petitioner humbly submits this memorandum for the petition filed before
this Honourable Court. The petition invokes its jurisdiction under Article 136
of Constitution of Malliavaan read along with Art.32. It sets forth the facts and
the laws on which the claims are based.
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
Malliavaan
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
-MEMORIAL ON BEHALF OF PETITIONER-
VII denying permission for abortion, had also taken into consideration the report of a panel of doctors submitted to the court stating the fact that there was physical risk to Ms.Uppal in continuation of her pregnancy. However, the same panel of doctors also mentioned in the report that due to the deformity, there is a chance that the child may be mentally as well as physically challenged. VI. Ms.Uppal along with Mr.Mahajan approached the Malliavaan Supreme Court for permission to terminate 21 ½ weeks of pregnancy, challenged the legality and the correctness of the order passed by the Hyderavaan High Court. She also challenged the constitutional validity of the relevant provision of Prohibition of Abortion Act, 1971 and to declare them as null and void including the other relevant relief.
-MEMORIAL ON BEHALF OF PETITIONER-
VII I
ISSUES PRESENTED
ISSUE 1:IS THE PETITION MAINTAINABLE?
ISSUE 2:WHETHER THE TERMINATION OF PREGNANCY CAN BE ALLOWED
EVEN AFTER THE SAID 20 WEEKS OF PREGNANCY IF SHE IS NOT WILLING TO
CARRY ON WITH HER PREGNANCY.
ISSUE 3: WHETHER THE PROVISIONS OF THE MEDICAL TERMINATION OF
PREGNANCY ACT, 1971 IS CONSTITUTIONAL VALIDITY?
-MEMORIAL ON BEHALF OF PETITIONER-
1
ARGUMENT ADVANCED
ISSUE 1: IS THE PETITION MAINTAINABLE?
Asha Uppal, aged 32 years, has approached this Court under Article 136 of the Constitution of Malliavaan read along with Art.32 seeking directions to the respondents to allow her to undergo medical termination of her pregnancy. She apprehended physical risk to her life, having discovered that her foetus, due to the deformity there is a chance that the child may be mentally as well as physically challenged. For a writ of mandamus or any other writ, order, directing the Respondents to allow the Petitioner to undergo Medical Termination of the Pregnancy.^1 For a writ of declaration or any other appropriate writ, order or direction quashing section 3(2)(b) of The Medical Termination of Pregnancy Act, 1971(hereinafter referred to "the MTP Act"). to the limited extent that it stipulates a ceiling of 20 weeks for an abortion to be done under section 3, as ultra vires and 21 of the Constitution of Malliavaan; For a writ of declaration or any other appropriate writ, order or direction quashing section 5(1) of the Act to the limited extent that it restricts abortions under section 5 to a restricted field where it is immediately necessary to save the life of the pregnant woman; For a declaration to the effect that the expression "save the life of the pregnant woman" in Section 5 of the MTP Act includes "the protection of the mental and physical health of the pregnant woman" and also incorporates situations where serious abnormalities in the fetus are detected after the 20th week of pregnancy.^2 For a declaration that the rational ceiling for abortions being done under section 3 of the Act is 24 weeks and even later in view of the material placed on record by the Petitioners; The Supreme Court has said that the right to privacy is implicit in Article 21 of the Constitution and a right to abortion can be read from this right.^3 (^1) Tapasya Umesh Pisal vs Union Of India on 10 August, 2017 (^2) Mamta Verma vs Union Of India on 9 August, 2017 (^3) Laxmi Mandal v. Deen Dayal Hari Nagar Hospital
-MEMORIAL ON BEHALF OF PETITIONER-
2 The petitioner, who is presently in the 21 ½ week of her pregnancy seeks, by means of this writ petition, to assail the vires of Section 3(2)(b) and Section 5(1) of MTP Act. The vires of Section 3(2)(b) is sought to be assailed to the extent it stipulates a ceiling of 20 weeks, as the terminus ad quem [The point of termination of a private way is so called.]^4 , beyond which abortion, of a foetus, is statutorily impermissible, and Section 5(1) to the extent it does not permit relaxation, of the rigour of Section 3, even in cases where there is manifest threat to the life of the foetus, were the pregnancy to be allowed to continue. This Writ Petition is maintainable before the court of law. ISSUE 2: Whether the termination of pregnancy can be allowed even after the said 20 weeks of pregnancy if she is not willing to carry on with her pregnancy. 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 women has an absolute right to have control over her body, most often known as bodily rights. The petitioner is 32 years of age. She is, already, as noted hereinabove, in the 21 ½ th week of her pregnancy. The foetus being carried by her was deformity and their may be chance of mental or physical deformity to the foetus. She, in the circumstances, seeks to have the foetus aborted, but is statutorily restrained from doing so, owing to the combined effect of Sections 3(2)(b) and 5(1) of the MTP Act, the vires, of which she seeks, therefore, to call in question. Sections 3(2)(b) and 5 (1) of the MTP Act, read thus:
- When pregnancies may be terminated by registered medical practitioners.-- (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,--
-MEMORIAL ON BEHALF OF PETITIONER-
4 (b) where 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 were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. It is submitted that a decision as to abortion may be entirely left with woman provided she is sane and attained majority. Only in cases where an abortion may affect her life, her freedom may be curtailed. All other restrictions on the right to abortion are unwelcome. A woman's decision as to abortion may depend upon her physical and mental health or the potential threat to the health of the child. Apart from these reasons, there are also various important factors. All these factors are quite relevant and the Malliavaan statute on abortion does not pay any respect to them. The law thus is unreasonable and could well be found to be violative of the principles of equality provided under Article 14 of the Constitution. Is it desirable to pay compensation to woman for all her physical and mental inconveniences and liabilities, which arises in that context^5 The rights provided as well as the restrictions imposed under the statute show that the very purpose of the state is to protect a living woman from dangers which may arise during an abortion process. It is the protection to the mother that protects the unborn. The petitioner submits that there is an absolute proscription in, Section 3(2)(b) of the MTP Act (supra), from termination of pregnancy, in cases where gestation has crossed 20 weeks. Where the pregnancy is of less than 20 weeks, it may be terminated by a registered medical practitioner, if the medical practitioner is of the opinion that the continuance of the pregnancy would involve risk of the life of mother, or grave injury to her physical or mental health, or in that, were pregnancy to be allowed to continue to term, of the child suffering from physical or mental abnormalities as would cause her, or his to be seriously handicapped. A similar (^5) Reddy G.B, "Role of Judiciary in protection of Human Rights Of Women", AIR 1999 Journal 148
-MEMORIAL ON BEHALF OF PETITIONER-
5 despantion is available where the pregnancy has not crossed 20 weeks, but has exceeded 20 weeks^6 Thus, submits the petitioner, the MTP Act, clearly, does not permit termination of pregnancy in cases where the pregnancy has crossed 20 weeks' gestation. Pleading that the condition of the foetus, carried by her, as presently diagnosed, is incompatible with life, the petitioner has approached this Court, essentially seeking permission to allow her to have her pregnancy terminated at this stage, though it has crossed 20 weeks. ISSUE 3: Whether the provisions of The Medical Termination of Pregnancy Act, 1971 is constitutional validity? In order to satisfy ourselves regarding the exact condition of the foetus being carried by the petitioner, and of the petitioner herself, The court, while denying permission for abortion, had also taken into consideration the report of a panel of doctors to examine the petitioner and render an opinion in that regard. They examined the petitioner and tendered the following opinion:
- That there was physical risk to Ms.Uppal in continuation of her pregnancy.
- That due to the deformity, there is a chance that the child may be mentally as well as physically challenged. learned counsel appearing for the petitioner, categorically states that my client was not fully aware of the situation. But after third ultrasonography at 20th weeks including the condition of her foetus and the possible risk in case termination of pregnancy is to be allowed at this stage, and that her client is willing to undertake the risk of termination of her pregnancy, but would not desire to allow the pregnancy to continue, given the condition of the foetus. The issue in controversy, is, legally, not res integra^7. (^6) Priyanka Shukla vs Union Of India And Ors. on 10 July, 2019 (^7) a point not covered by the authority of a decided case, so that a judge may decide it upon principle alone. An entire thing- Black's Law Dictionary
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7 In these circumstances we find that the right of bodily integrity calls for a permission to allow her to terminate her pregnancy. The report of the Medical Board clearly warrants the inference that the continuance of the pregnancy involves the risk to the life of the petitioner and a possible grave injury to her physical or mental health as required by Section 3(2)(i) of the Medical Termination of Pregnancy Act, 1971. Similarly in Sarmishtha Chakrabortty v. Union of Malliavaan^13 , though the pregnancy had continued for 25 weeks, the report of the Medical Board constituted to examine the case confirmed that, if the pregnancy were allowed to be continued, the mother was under threat of severe injury and the child, even though born alive, would complex cardiac corrective surgery stage by stage after birth, in which, at every stage, there was high morbidity as well as mortality. Following its decisions cited supra, the Supreme Court allowed the prayer of the petitioner, before it, for medical termination of her pregnancy. In Nikhil D. Dattar v. Union of Malliavaan,^14 section 3 and 5 of MTP Act was challenged on the ground of non-inclusion of eventualities vires of the Act. In this case the foetus was diagnosed for complete heart block thus the Petitioner, in her twenty sixth week of pregnancy, had sought termination of pregnancy. The petitioner contended that section 5(1) of the MTP Act should be read down to include the eventualities in section 3 and consequently, a direction should be issued to the respondents to allow the petitioner to terminate the pregnancy. While dismissing the petition the court further held that since twenty six weeks of pregnancy has already passed the court could not pass any direction for exercise of right under section 3. This case further reiterated that the physical and mental trauma which may be experienced by women in such circumstances. Mamta Verma vs. Union of Malliavaan [25 weeks]). In all these cases the Supreme Court referred the matters to a Medical Board and gave its decision based on the opinion of the Medical Board. Without needlessly multiplying authorities, it may be noted that these decisions rely on earlier decisions of the Supreme Court, which are to the same effect. Apart from the fact that the issue is covered by the decisions cited hereinabove, we are also of the opinion, that in holding as we do, we are not really infracting Section 3 or Section 5 of the (^13) (2018) 13 SCC 339 (^14) S.L.P. (Civ.) No. XXXX of 2008
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8 MTP Act (supra). Section 3(2)(b) permits termination of pregnancy, inter alia, where there is substantial risk of serious physical or mental abnormalities, were the child to be allowed to be born. Seen in isolation, it thus places a gap of 20 weeks gestation for this to be permissible. At the same time, Section 5 relaxes the rigour of Section 3(2) in a case where the termination of the pregnancy is immediately necessary to save the life of the pregnant woman. We are of the opinion that these provisions have be to construed as part of one cumulative dispensation and not isolated from each other. Seen thus, we are convinced that, even in a case where the condition of the foetus is, as in the present case, incompatible with life, the rigour of Section 3(2) deserves to be relaxed, and the right to terminate the pregnancy cannot be denied merely because gestation has continued beyond 20 weeks. Law, needles to say, cannot be construed in a manner incompatible with life. Respectfully following the judgments cited hereinabove, and in the facts and circumstances
of the case including inter alia, the report of a panel of doctors as provided to us in Court,
we are of the view that the prayer of the petitioner deserves to be allowed.
