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PARTICICPANT CODE - FM
NATIONAL UNIVERSITY OF ADVANCED LEGAL
STUDIES,FRESHERS’ MOOTCOURT COMPETITION
BEFORE THE HON’BLE HIGH COURT OF KERALA
DR. MARGRET ALEXI
MS R REPRESENTED BY SMT.KANTHMATHI
Versus UNION OF INDIA And LOVE AND CARE FOR CHILDREN, KERALA Versus UNION OF INDIA And DR. MARGRET ALEXI Versus
STATE OF KERALA
MEMORIAL FOR RESPONDENT
TABLE OF CONTENTS
- • BOOKS AND COMMENTARIES…………………………………………………. 1. INDEX OF AUTHORITIES
- • CASES CITED………………………………………………………………...….3,
- • ACTS, RULES AND INSTRUCTIONS…………………………………………….
- • WEBSITES REFERRED…………………………………………………………….
- STATEMENT OF JURISDICTION …………………………………………...………
- STATEMENT OF FACTS …………………………………......................................6,
- STATEMENT OF ISSUE……………………………………………...………………..
- TABLE OF ABBREVATIONS…………………………………………………………
- SUMMARY OF ARGUMENTS…………………………. ……………..…………….
- ARGUMENTS ADVANCED……………………..……………………...…………….
- PRAYER ……………………………………………………………….……………….
_16. Roe Vs Wade [1973] No. 70-18 (United States Supreme Court).
- S.M. Datta vs. State of Gujarat,AIR 2001 SC 3253, ¶
- State of Haryana vs Bhajanlal, AIR 1992 SC 604
- State of Karnataka v. M. Devendrappa and Anr (2002) 3 SCC 89
- State of W.B. v. Mohd. Khalid AIR 1955 SC 785
- Suchita Srivastava & Anr vs Chandigarh Administration [2009] CIVIL APPEAL NO._ _OF 2009 (THE SUPREME COURT OF INDIA).
- Suresh Kumar Koushal and Anr. V. Naz Foundation and Anr. Civil Appeal No. 10972 of_ 2013 ACTS, RULES AND INSTRUCTIONS
- Criminal Procedure, 1973 (Act No. 2 of 1974)
- The Indian Evidence Act, 1872 (Act no. 1 of 1872)
- The Medical Termination of Pregnancy Act, 1971. (Act No. 34 of 1971)
- The Indian Penal Code. (45 of 1860) WEBSITES REFERRED
- http://www.scconline.com
- http://www.Pib.nic.in
- https://www.manupatra.com
- http://www.164.100.79.153/judis/
STATEMENT OF JURISDICTION
The Respondents, hereby, submit that this Honourable Court has the jurisdiction in dealing with the Writ Petition under Article 226 of the Constitution and in dealing with the Criminal Petition under Section 482 of the Criminal Procedure Code, 1973.
- However, all other members of the board objected to MTP. Aggrieved by this, Smt. Kanthimathi approached the High Court of Kerala. with two prayers: seeking permission for the termination of pregnancy even if the period has exceeded the statutory bounds; and to hold the Medical Termination of Pregnancy Act, 1971 and the impugned provisions of IPC penalizing causing miscarriage as unconstitutional.
- In the meanwhile, Wixi was arrested, and an FIR lodged. In the course of the investigation, the police also proceeded against Dr. Margret Alexi for conducting abortion in the first instance. The doctor was also booked for abetting the offence committed by Wixi. In turn, Dr. Alexi, approached the Hon'ble High Court of Kerala to quash the FIR filed against her, claiming it to be violative of her professional rights and frivolous in nature. She also joined the petition filed by Smt. Kanthimathi, praying that the Indian law on abortion was outdated and violative of the rights of women and hence unconstitutional.
- Love and Care for Children, Kerala (LACCK), another NGO wanted to join the petition pending in the High Court for defending the rights of an unborn child under Article 21 of the Constitution of India. LAACK also required for the abolition of all provisions enabling MTP in India so as to protect the right to life of an unborn child. According to LAACK, all terminations of pregnancy, unless to prevent the death or physical injury of a pregnant woman, were violative of the rights of an unborn child, and to that extent, Indian laws on abortion were unconstitutional. .
STATEMENT OF ISSUES
- Whether the petitions are maintainable in the High Court?
- Whether the Medical Termination of Pregnancy Act 1971 is Constitutionally Valid?
- Whether the IPC Sections on Miscarriage are Constitutionally Valid?
- Whether the termination of pregnancy shall be allowed beyond the statutory bounds Inscribed in Section 3, Sub-Section 2, Clause (a) & (b) of the MTP Act, 1971?
- Whether the MTP Act violates the right to life of an unborn child?
- Whether the FIR filed against Dr. Alexi can be quashed?
SUMMARY OF ARGUMENTS
i. Arguments on maintainability The present writ petition files on behalf of MS.R by SMT. Kanthimathi and Dr. Margaret Alexi is not maintainable. The petition filed to quash the FIR under section 482 of Cr.P.C is not maintainable. The public interest litigation filed by love and care for children, kerala is not maintainable ii. Arguments on behalf of Union of india No infringement of fundamental right or any other right has been taken place. Petitioners have no locus standi. The termination of the pregnancy shall not be allowed beyond the statutory bounds inscribed in the Section 3 Sub Section 2 clause (a) & (b). An unborn child beyond such a limit can be termed as a “person” and abortion of such nature would amount to killing. iii. Arguments on behalf of State of Kerala Margret Alexi did not act in accordance with law. Present petition do not satisfy any of those criteria laid down by Supreme Court while deciding quashing of an FIR. iv. Arguments on behalf of Union of India Petitioner has no locus standi. Art. 21 of the Indian constitution do not absolutely defend the right of an unborn child. Section 3 sub Section 2 subjected to clause (a) and clause (b) sub clause (2) of The Medical Termination Of pregnancy Act, 1971 is constitutionally valid.
ARGUMENTS ADVANCED
ARGUMENTS ON MAINTAINABILTY OF WRIT PETITION, FIR AND PIL.
1. The writ petition is not maintainable.
- Writ Jurisdiction of the High Courts’ flows from Article 226,^1 which confers wide powers enabling the Court to issue writs, directions, orders for the enforcement of fundamental or legal rights.^2 The exercise of writ jurisdiction by the High Court is discretionary in nature.^3 It is submitted that the writ petition is not maintainable primarily on three grounds: first, there is no locus standi for filing the writ petition; second, the petitioner has alternate remedies available; third, no fundamental right has been violated. 1.1.THERE IS NO LOCUS STATNDI FOR FILING THE WRIT PETITION:
- In order to file a writ petition in the High Court under article 2264 , there must be a locus standi^5. In M.S Jayaraj vs Commissioner of exercise, Kerala and ors^6 , the Kerala high court did not consider the petition since the writ petitioner did not have locus standi to challenge the order of the Commissioner. The court held the similar judgement in Chandra Deo Singh vs Prokash Chandra Bose^7. In the present case, the petition is filed by Kanthimathi and Dr.Alexi who are not the aggrieved party and therefore they do not have the locus standi in order to file the petition^8. The petitioner No.2 Margret Alexi has been booked U/S 107 of the IPC and also for violating section 3 of MTP Act. So the petitioner’s actual intensions are questionable. 1.2.ALTERNATE REMEDIES ARE AVAILABLE:
- One of the necessary conditions for the filing of writ petition under article 226 is that there exist no alternate remedy^9 available to the aggrieved party. Hon’ble Apex Court in the case of Nivedita Sharma v. Cellular Operators Association of India^10 has held that Petitioner must exhaust its alternative remedy before approaching the High Court. Though (^1) Article 226, Constitution of India. (^2) H. M. SEERVAI, COMMENTARY CONSTITUTIONAL LAW OF INDIA, 4 th (^) ed., vol. 2, 2007 at p. 1586. (^3) D.D. BASU, ON THE CONSTITUTION OF INDIA, C.K. Thakker & S.S. Subramani & T. S. Doabia & B. P. Banerjee eds., Vol. 6, 8th ed. 2012, p. 6614. (^4) Article 226 of the indian constitution (^5) Union of India Vs M/s. Padmini Polymers Ltd & ANR, W.P.(C) 412/2006 &413/ (^6) M.S Jayaraj vs Commissioner of exercise, Kerala and ors, 2000 (7) SCC 552 (^7) AIR 1963 SC 397 (^8) Madhavrao Jiwajirao Scindia and ors vs Sambhajirao Chandrojirao Angre and ors,(1988) 1 SCC 692 9 M/S Maa Durga Enterprises vs The Bihar Industrial Area Development Authority and Others, Civil Writ Jurisdiction Case No.2265 of 2011 (^10) 2011 14(SCC) 337 - G.S. Singhvi and S.J. Mukhopadhaya, JJ
these criteria. Further the scope of Sec. 482 of CrPC was set out and reiterated in State of Karnataka v. M.Devendrappa^16 and State of Haryana v. Bhajan Lal^17. The case does not qualify any of these criteria. And for these reasons it is humbly submitted in the Hon’ble court that the petition is not maintainable and the FIR cannot be quashed 1.4 Love and Care for Children, Kerala v. Union of India
1. A PIL filed by concealing material facts and involving no public interest is to be held not maintainable and should be dismissed at all costs.^18 The present petition challenging the constitutionality of MTP Act is unreasonable. MTP “Act provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto,”^19 The Medical Termination of Pregnancy (MTP) Act recognizes the importance of providing safe, affordable, accessible and acceptable abortion services to women who need to terminate an unwanted pregnancy and legalizes abortion on therapeutic, eugenic, humanitarian or social grounds. It also aims to regulate and ensure access to safe abortion care and also defines ‘when’, ‘where’ and ‘by whom’ abortion can be performed.^20 Locus standi in public interest litigation is a very important factor and the Court should always inquire into the locus of a person before entertaining such a petition.[4]^ The scope of ’public interest litigation' under Art. 226 has been explained in Dattaraj Nathuji Thaware vs. State of Maharashtra And Ors.^21 The Court observed that 'public interest litigations' were to be admitted with great care and for redressal only of genuine public wrongs or injury and not for the redressal of private, publicity- oriented or political disputes or other disputes not genuinely concerned with public interest. 2. Thus, it’s clear that the Love and Care for Childern, Kerala has no locus standi. This is a case of suggestio falsi ET suppressio veri. Therefore it is humbly presented before the Hon’ble court that the present petition is not maintainable. (^16) State of Karnataka v. M. Devendrappa and Anr (2002) 3 SCC 89 (^17) State of Haryana v. Bhajan Lal AIR 1992 SC 604 (^18) Olga Tellis v. Bombay Municipal Copn., AIR 1986 SC 180 (^19) Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009). Shorter constitution of India. Gurgaon: LexisNexis Butterworths Wadhwa Nagpur. (^20) R.Rajagopala Alias R.R.Gopal And Another v.State of T.N And Others AIR 1995 SC 265 (^21) Dattaraj Nathuji Thaware vs. State of Maharashtra and Ors. Special Leave Petition (civil) 26269 of 2004
ARGUMENTS PRESENTED ON BEHALF OF UNION OF INDIA
1. The termination of the pregnancy shall not be allowed beyond the statutory bounds inscribed in the Section 3 Sub Section 2 clause (a) & (b) 1 .1 An unborn child beyond the prescribed statutory bounds can be regarded as a person.
- 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 Wade^22 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’.
- To decide whether a child in the womb of the mother can be called as a person, it is pertinent to discuss different stages of birth of a child in the womb of a mother. Technically the term developing ' ovum ' is used for the first seven to ten days after conception i.e. until implantation occurs. It is called an ' embryo ' from one week to the end of the second month and later it is called 'foetus'. It becomes an infant only when it is completely born. 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. As already stated above a person means a human being regarded as an individual and an individual's body: concealed on his person'.^23 The Hon'ble High Court in Manikuttan Vs M.N. Baby^24 held that “ foetus is another life in the woman and it comes as a baby in the course of time Court in. (^22) [1973] No. 70-18 (United States Supreme Court). (^23) Mahima Suri Mukherjee vs Ca (^24) 2009 ACJ 1497
- MTP Act has played a vital role in emancipation of woman from the age old fear off abortion being considered as a sinful and criminal act.^29 The idea of a liberalized law of abortion was first mooted by the Central Planning Board of the Government of India is 1964 as a family planning measure.^30. To avoid the misuse of induced abortion and to soften the rigors of the law of abortion contained in the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971 was passed.^31 There is no doubt that a woman's right to make reproductive choices is also a dimension of 'personal liberty' as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a 'compelling state interest' in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.”
- The ceiling of 20 weeks is due to 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 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.^32
- In Nand Kishore Sharma and Ors. vs Union Of India (Uoi) And Anr^33 the High Court of Rjasthan held that “The object of the Act being to save the life of the pregnant woman or relieve her of any injury to her physical and mental health, and no other thing, it would appear the Act is rather in consonance with Article 21 of the Constitution of India than in conflict with it.While it may be debatable as to when the foetus comes to life so as to attract Article 21 of the Constitution of India, there cannot be two opinion that where continuance of pregnancy is likely (^29) K.D. Gour- Abortion and the law in countries of Indian sub-continent, Asean Region , United Kingdom , Ireland and United States of America, ppp.306-307 JILI. (^30) Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and Political Weekly (1993). (^31) Shodhganga.inflibnet.ac.in. (2019). [online] Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/197919/9/09%20chapter%2004%20pdf.pdf [Accessed 27 Feb. 2019]. (^32) Dagmar K. Kalousek and Naomi Fitch, Pathology of the Human Embryo and Previable Fetus, 1st Edition. (^33) AIR 2006 Raj 166
to involve risk to the life of the pregnant woman or cause grave injury to her physical and mental health, it would be in her interest to terminate the pregnancy.” Its object, besides elimination of high incidence of illegal abortion is to confer on women the right of privacy.^34 2 .2. The provisions in MTP Act allows for exceptions The section 3 of the MTP Act^35 says that pregnancy can be terminated on grounds of: 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. 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. The restrictions posed by MTP is reasonable as it looks into the legal abortion from all perspectives. Moreover, MTPA isn’t a rigid Act as Section 5 of the Act allows abortion done in good faith to save the life of the mother n extreme situations. Section 8 provides immunity to the doctor for an abortion done in good faith. In the light of arguments advanced it is humbly submitted before the Hon’ble High Court of Kerala to maintain the constitutional validity of the Medical Termination of Pregnancy Act, 1971. (^34) Doe v. Bolton 41 P.S.I.W 4233 (1973) (^35) Medical Termination of Pregnancy Act, Medical Termination of Pregnancy Rules
law as being already born. In Hindu law a child in his mother’s womb is equal in many respects to a child actually in existence.
- The right to life of a person is not an absolute right and is restricted by ‘procedure established by law’. India being a welfare state can’t sacrifice the interest of one being at the cost of other. In Queen Empress V Ademmia , the Madras High Court in 1888, had stated that, “The fact that the unborn child is physically dependent on its mother prior to birth need not lead to the assumption that it has no relevant separate existence nor to the assumption that it has no legal or moral significance.” Thus the state is under the obligation to protect the life of the unborn along with that of the mother. In the light of arguments advanced it is humbly submitted before the Hon’ble High Court of Kerala that to maintain the constitutionality of Section 312 of IPC.
ARGUMENTS ON BEHALF OF STATE OF KERALA
1. Present petition is not maintainable and the FIR cannot be quashed
1.1 The allegations constitute offence prima facie
1. It is humbly submitted before the Hon’ble High Court of Kerala that the abortion conducted on Ms.R was without proper enquiry and the charges in the FIR are prima facie constituting offence under the I.P.C. 2. FIR is fit to be quashed if the charges in the FIR do not constitute an offence under the I.P.C. as the charges are so absurd that no prudent person can even reach a just conclusion that there is sufficient ground for proceedings against the accused.^37 Also the FIR can be quashed if any information accompanying the FIR do not disclose the cognizable offence or do not support or disclose the commission of any offence against the accused.^38 3 In the present case, the charges are filed under the MTP Act read with Section 312 of I.P.C. .The doctor conducted the abortion on Ms.R is not in compliance with the provisions of the MTPA, as violation of the MTPA is cognizable in nature.^39 It can be seen that there has been a commission of offence by Dr. Margret Alexi. In the case of S.M. Datta vs. State of Gujarat,^40 the Apex court observed that criminal proceedings should not be discharged at initial stage, unless the same amounts to abuse of the due process of law. Hence, it may be submitted that the FIR should not be quashed and a thorough investigation should be initiated. 1.2 There must be further investigation
- The counsel humbly submits before the Hon’ble High Court that there was an offence committed by the petitioner as an abortion was conducted without following any due procedures. The abortion was conducted by Dr. Margret Alexi just on the strong conviction of Ms.R. , Even though the foetus was 5 weeks old it can be said as the responsibility of the doctor to enquire about the pregnancy and make sure that the facts of the pregnancy, comply with the provisions of the MTPA. 4 It can be seen from the conduct of the doctor of not enquiring as a mala intention to abet with wixi in causing miscarriage^41. The petitioner has violated the MTPA and section 312 of IPC which being a cognizable offence. The state has the right to investigate any (^37) State of Haryana vs Bhajanlal, AIR 1992 SC 604 (^38) Ibid (^39) Moot preposition, Pg.No. (^40) AIR 2001 SC 3253, ¶ (^41) Section 312 of IPC
