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A legal analysis of the medical termination of pregnancy act, 1971 in india, focusing on the constitutional issues surrounding the act, particularly article 14 and article 21 of the indian constitution. The classification made under section 3 of the act and the denial of dna tests to establish the parentage of the fetus, arguing that these do not violate the constitutional rights of individuals.
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TT Table of content
From the side of the Respondent
Vol. Const v. Ltd SCR Ors Retd i.e., Art COI U/S MTP IEA Supreme Court Supreme Court Cases ALL India Reporter Number Volume Constitution Versus Limited Supreme Court Reports Others Retired That is Article Constitution of India Under Section THE MEDICAL TERMINATION OF PREGNANCY Indian Evidence Act From the side of the Respondent
Index of authorities Cases Cases Alakh Alok Srivastava vs. Union of India (2018) 7 SCC 69……………………………………. Ashok kumar v. Raj Gupta 2021……………………………………………………………….. A v. Union of India and others ( 2018) 14 SCC 75…… ………………………………………............ Bhabani Prasad Jena vs. Convenor Secretary, Orissa State Commission for Women (2010) 8 SCC 633, (2010) 9 SCR 457………………………………………………………………………….. Dipanwita Roy vs. Ronobroto Roy (2015) 1 SCC 365, AIR 2015 SC 418……………………… Sharda vs Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493…………………………………… Murugan Nayakar v. Union of India and Ors., (2018) 16 SCC 163…………………………….. Ms. X v. State of Kerala and others ( 2016 ) 5 KHC 673 : ( 2016 ) 4 KLT 745 ………………………… Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538........................................... Sharda vs. Dharmpal AIR 2003 SC 3450, (2003) 4 SCC 493.................................................... State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75..................................................... Books M P Jain, Constitution of India 8th Edition, 2018 Dr. Ishita Chatterjee, Health Law, First Edition
Issue 1 Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? Issue 2 Whether denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity violates Article 21 of the Constitution? From the side of the Respondent
Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? Argument Advanced Whether the classification made under Section 3 of the Medical Termination of Pregnancy Act, 1971 (MTP Act) unreasonable and violates Article 14? 1.1 The counsel for Respondent humbly submits before this Hon’ble Supreme Court that Applicant’s suit is not maintainable before this Hon’ble court for the following reasons as follows:
classification made under the impugned section strikes a balance between the rights and interests of the woman and the rights and interests of the potential child. 1.6 It is stated in Ram Krishna Dalmia v. Justice S.R. Tendolkar^1 , by the SC that while Article 14 prohibits class legislation, it does not prohibit reasonable classification for legislative reasons. 1.7 It is held in State of West Bengal v. Anwar Ali Sarkar^2 , by the SC held that reasonable classification is not in violation of article 14 as long as it satisfies the two fold test of intelligible differentia and rational nexus. 1.8 It is submitted that the objective of the pertinent MTP Act is to provide a legal framework for safe and legal abortion services in India. The Act recognizes that the health risk associated with termination of pregnancy increases as the length of pregnancy increases and the life of the unborn child becomes more important as the pregnancy progresses. This recognition is evident by the classification which has been made under section 3 of the Act which permits termination of the pregnancy beyond 20 weeks only in certain circumstances and only for certain categories of women. 1.9 It is contended that the classification under section 3 of the MTP Act, based on the duration of pregnancy, has a direct nexus with the object of the Act, which is to provide women with safe and legal abortion services while also taking into consideration the health of the mother and the life of the unborn child. The classification recognizes the fact that as the pregnancy progresses, the health risks associated with the termination of pregnancy increase, and the life of the unborn child becomes more important, and as such, allows for termination of pregnancy beyond 20 weeks only in certain circumstances and only for certain categories of women, where the health or life of the mother is at risk, or where the foetus has severe abnormalities. This ensures that the right to safe and legal abortion is balanced with the interests of the mother and the unborn child. 1.10 It is submitted that the classification made under section 3 of the MTP Act fulfils the conditions laid down In the case of Re Special Courts Bill, 1978^3 for permissible classification. 1.11 In Alakh Alok Srivastava vs. Union of India^4 , where the petitioner was a 10-year- old pregnant rape victim with a 32-week pregnancy as well the Court did not allow (^1) AIR 1958 SC 538 (^2) AIR 1952 SC 75. (^3) [ AIR 1979 SC 478] (^4) (2018) 7 SCC 69.
1.19 From the above extract it is clear that the court recognises the right of a woman to control her own body and to make decisions regarding her own reproductive health. 1.20 It is further contended that abortion under the MTP Act is an exception to the criminal offence iterated under section 312 of the Indian Penal Code (IPC), and not a rule. 1.21 It is submitted that MTP Act doesn’t make abortion legal but sets clear situations in which it is to be permitted. 1.22 It has been articulated by the Courts in the case of Suchita Srivastava v. Chandigarh Administration^8 , that the legislative intent of the MTP Act was to provide a qualified `right to abortion' and the termination of pregnancy has never been recognised as a normal recourse for expecting mothers. In this case, the Supreme Court of India held that the MTP Act is an enabling provision which creates an exception to the general rule that abortion is illegal. 1.23 It is submitted that the classification under section 3 of the MTP Act serves the purpose of the Act in legalizing abortion only in certain situations and circumstances and also serves the interest of the state in restricting foeticide. 1.24 It is clear from the above extract that the that the classification under section 3B of the MTP Rules 2021 for the purpose of section 3(b) of the MTP Act as to the categories of women, does not violate article 14 of the constitution. (^8) (2009) 9 SCC 1
Whether denial of DNA test to establish the parentage of the fetus to uphold the dignity of a woman wherein she is accused of infidelity violates Article 21 of the Constitution?
In the light of the arguments advanced and authorities cited, the Respondent humbly submits that the Hon’ble Court be pleased to adjudge and declare that: