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MEMORANDUM OF ARGUMENTS FOR THE PETITIONER 2 nd^ SAARCLAW- JLU MOOT COURT COMPETITION 2020
IN THE SUPREME COURT OF PROSPERIA
PETITION INVOKED
UNDER ARTICLE 32 OF THE CONSTITUTION OF PROSPERIA r/w O XXXVIII R 1(2) OF SUPREME COURT RULES, 2013 IN THE MATTER BETWEEN: MS. SMITA AND OTHERS (PETITIONERS) V. SAVE THE LIFE AND UNION OF PROSPERIA (RESPONDENTS) MOST RESPECTFULLY SUBMITTED TO THE HON’BLE JUDGES IN THE SUPREMECOURT OF PROSPERIA
MEMORIALON BEHALF OF RESPONDENT
DRAWN AND FILED BY THE COUNSELS FOR THE DEFENSE
T- 22
TABLE OF CONTENTS
LIST OF ABBREVATIONS………………………………………………………………….
INDEX OF AUTHORITIES…………………………………………………………..……4- 7
STATUES REFERRED…………………………………………………………………….
BOOKS REFERRED……………………………………………………………………….
CASES REFERRED………………………………………………………………….…..5- 7
STATEMENT OF JURISDICTION………………………………………………………….
STATEMENT OF FACTS…………………………………………………………...…… 9 - 10
STATEMENT OF ISSUES…………………………………………………………………..
SUMMARY OF ARGUMENTS………………………………………………………....12- 14
ARGUMENT ADVANCED…………………………………………………………….. 15 - 32
1. WHETHER THE PRESENT PETITION IS MAINTANABLE BEFORE THIS
HON’BLE SUPREME COURT ?.................................................................................... 15 - 17
[1.1.] THAT PETITIONS HAS NO LOCUS STANDI IN THE INSTANT CASE...... 15 - 16
[1.2.] THAT IT DOES NOT VOILATES THE FUNDAMENTAL RIGHT OF THE
PETITIONER…………………………………………………………………………….. 16 - 17
2. WHETHER MS. SMITA CAN CLAIM ABSOLUTE RIGHT TO TERMINATION
OF PREGNANCY AT 11TH WEEK OF PREGNANCY ?........................................... 17 - 20
[2.1] THAT AN UNBORN HAS RIGHT TO LIFE……………………….………… 17 - 18
[2.2] THAT ABORTION IS AGAINST RELIGION…………………...…………… 18 - 20
3. WHETHER THE LAW ENFORCED IN PROSPERIA WHICH SAYS THAT
PREGNANCY BEYOND 20TH WEEK CAN BE TERMINATED ONLY IF IT IS
NECESSARY TO SAVE THE LIFE OF THE WOMAN CONSTITUTIONALLY
VALID ?..............................................................................................................................20- 22
[3.1] THAT THE PREGNANCY BEYOND 20 TH^ WEEK CANNOT BE
TERMINATED………………………………………………………......….……………20- 21
[3.2] THAT THE PROVISIONS OF MTP IS CONSTITUTIONALLY
VALID…………………………………………………………………………..……….…..
4. WHETHER PREETI CAN CLAIM ABSOLUTE RIGHT TO TERMINATION OF
PREGNANCY AT 30TH WEEK OF PREGNANCY LIKE SMITA? ........................23- 25
[4.1] THAT THE DEVELOPMENT OF THE CHILD CAN BE SEEN AT 30TH
WEEK….............................................................................................................................23- 24
LIST OF ABBREVATIONS
ABBREVIATED FORM MEANING
Art. Article SC Supreme Court HC High Court AIR All India Report SCC Supreme Court Cases SCR Supreme Court Report UOI Union Of India Ors. Others J. Justice W.P Writ Petition & And Sec. Section Govt. Government Pvt. Private Ltd. Limited vis-à-vis In relation with r/w Read with MTP Medical termination of pregnancy CriLJ Criminal law journal CrLJ Civil law journal RMPs Registered Medical Practitioners v. Verses ICCPR The International Covenant on Civil and Political Rights UDHR Universal Declaration on Human Rights PIL Public Interest Litigation
INDEX OF AUTHORITIES
STATUTES REFERRED
S.No.
STATUTES REFERRED YEAR
The Constitution of India 1950
Indian Penal Code 1860
Medical Termination of Pregnancy Act 1971 BOOKS REFERRED S.No.
AUTHOR & TITLE EDITION &
YEAR
M.P. Jain, Indian Constitutional Law (^) 7 th^ Edition,
P.M. Bakshi, The Constitution of India (^) 13 thEdition,
Durga Das Basu, Commentary on the Constitution of India (^) 8 th^ Edition,
HM. Seervai, Constitutional Law of India (^) 4 th^ Edition,
M.P. Jain, Outlines of Indian Legal & Constitutional History (^) 6 th^ Edition,
Durga Das Basu, Introduction to the Constitution of India (^) 20 thEdition,
Dr. L.M. Singhvi, Constitution of India (^) 3 rd^ Edition,
- Narendra Kumar, Constitutional Law of India 9 th^ Edition,
- Dr. G.P. Tripathi, Indian Constitution 2 nd^ Edition,
Prem Chand Garg v. Excise Commissioner of Uttar Pradesh
AIR, 996(SC:1963) 17
I.R. Coelho (Dead) by Lrs. and Ors. v. State of Tamil Nadu.
AIR, 861 (SC:2007) 17
Bandhua Mukti Morcha v. Union of India
AIR, 802 (SC:1984) 17
Sachitanand Pandey v. State of West Bengal
SCC, 295 (SC:1972) 17
The Chairman, Railway Board &Ors. v. Chandrima Das And Ors.
AIR, 988 (SC:2000) 17
Sabra v. State of Haryana and ors 1RCR. 575 (Criminal:2018)
Chandrakant JayantilalSuthar v. State of Gujarat
4, RCR, 876
(Cr.:2016).
Krishnan v. G. Rajan alias Madipu Rajan and The Inspector of Police 1 LW, 16 (Crl:1994) 20
Asha ben v. State of Gujarat 4 Crimes 1 (Guj :2015) 20
Shewata v. State of Haryana and ors.
183 PLR 257 (2016) 21
Subbi v. State of Haryana and Ors 188,PLR,. 438 (2017) 21
Harjit Kaur v. State of Punjab AIR, 2571 (SC:1999) 22 ,
Nand Kishor Sharma and Ors. v Union of India and Ors. AIR 2006 Raj 166 22
X v. Union of India and Ors (WP(C)593/2016 24
Commrf., H.R.E v L.T Swamiar AIR,282(SC:1954) 26
Tagore v. Tagore A Suppl. , 47 (1872) 30
Jabbar v. State AIR, 590, (SC:1966) 30
X v. Govt. of NCT of Delhi and Anr 1 RCR, 510 (Civil:2014).
Indu Devi v. State of Bihar SCC, 786 (SC:2017) 31
Dr. Nisha Malviya and Anr. v. State of M.P. AIR,2000 CriL. J 671 32
M. S. Subbukrishna v. Parvathi AIR, 191 (Karn:2008). 30
Shri Bhagwan Katariya and Others v. State of M.P
4, MPHT, 20,
CG(2008)
STATEMENT OF FACTS
Background
- The Penal Code of Union of Prosperia i.e., Prosperian Penal Code, 1860 criminalized causing miscarriage of a woman except where it is necessary for the purpose of saving the life of the woman. The Union of Prosperia is a secular country located in South Asia. There is no intervention of the State in religious matters. However, in 1971 Medical Termination of Pregnancy Act (MTP Act) was passed in Union of Prosperia which decriminalized only certain kinds of abortion. The Supreme Court of Union of Prosperia has given wide interpretation to Right to Life recognized by its Constitution although those rights are not specifically enumerated in the Constitution.
- The Constitution of Union of Prosperia provides freedom of religion as a fundamental right, to give to its people the freedom of worship and religion and to outlaw discrimination on the ground of religion. All religions are governed by personal laws which are governing marriage, divorce, succession, etc. Petitioners/Appellants
- Ms. Smita, an unmarried woman was in a live-in relationship with her partner Firoz. She is 11 weeks pregnant and this conception happened due to the failure of contraceptive device used. As it was unplanned pregnancy, she went for an abortion. However, the Medical practitioner refused to do abortion as it was not in accordance with the provisions of the MTP act.
- Mrs. Meena is 22 weeks pregnant, discovers that her fetus suffers from cardiac anomaly, the child which would require multiple corrective surgeries, but even after that the child may not survive for more than 6 months after birth. She wanted to have an abortion but was refused by the medical practitioner as the condition was not life threatening for her.
- Ms. Supriya a rape victim is 25 weeks pregnant, she decided to have an abortion as the pregnancy constantly reminded her of the horror she had been through. The medical practitioner denied her request.
- Tara is married to Sumit for 3 years. She is a victim of domestic violence. In the 19th weeks of her pregnancy, she discovered that Sumit, is a drug addict. When she confronted Sumit, he got angry and hit her. She was seriously injured and had to be hospitalized. She decides to end her marriage and to have an abortion but the medical
practitioner refuses her request as she was in the 21st week of pregnancy.
- Mrs. Preeti, a married woman is 29 weeks pregnant. At the advance stage of her pregnancy she tells her husband she does not feel like going ahead with the pregnancy. They approached the doctor in 30th week of her pregnancy; the doctor refuses to perform an abortion. PETITION FILED
- Ms. Smita, Mrs. Meena, Ms. Supriya, Mrs. Tara, Mrs. Preeti have approached the Supreme court of Union of Prosperia by means of writ petition challenging the refusal of abortions and also the constitutionality of various provisions of MTP Act.
- Religious group called ‘Save the Life’ has filed an application in the court opposing their praying saying abortion is against the religion
SUMMARY OF ARGUMENTS
I. WHETHER THE WRIT PETITION IS MAINATAINABLE BEFORE THE
SUPREME COURT?
It is humbly submitted before this Hon’ble Supreme Court that the present petition is not maintainable under Article 32 of the Constitution of Prosperia. The rights of petitioners have not been violated. So the petitioners have no locus standi to present their case as the medical practitioners have already declared that abortion cannot be done in those cases because it is not necessary for saving her life^3. The present case does not involve any substantial question of law neither there is any grave injustice nor public interest.^4 Also, under the purview of the said Article the Apex Court is not a Court of Appeal except in special exceptional cases which must be proved by the Appellant.^5 Article 32 of the Constitution of Prosperia guarantees the people of Prosperia, the right to judicial remedies for the enforcement of rights.^6 The right to judicial remedies is itself a fundamental right and a prima facie breach of it has to be shown in order for a petition to be maintainable under Article 32.^7 II. WHETHER MS. SMITA CAN CLAIM ABSOLUTE RIGHT TO TERMINATION OF PREGNANCY AT 11TH^ WEEK OF PREGNANCY? It is humbly submitted before this Hon’ble Supreme Court that Ms. Smita cannot claim absolute right to termination of Pregnancy at 11th^ week of pregnancy as the foetus enjoys the Right to Life under Article 21 of the Constitution. Further, Abortion is multi- faced because it involves the culmination of many aspects such as religion, ethics, medicine and law, which means that Abortion is a part of religion and many people consider it as a sin and claims that it is a violation of fundamental right of an unborn child, i.e. the Right to Religion. Also it was mentioned in the Moot Proposition that Ms. Smita is an unmarried woman where her pregnancy happened due to the failure of contraceptive device. And as mentioned in Sec 3 of the MTP Act that the termination of pregnancy is allowed in case of failure of contraceptive device only to the married (^4) Pritam Singh v. The State, AIR, 169(SC:1950). (^5) Ibid. (^6) The Constitution of India, Article 32. (^7) Subhash Kashinath Mahajan v. The State of Maharashtra and Ors., AIR, 1498(SC:2018).
women. This clearly states that terminating the pregnancy by Ms. Smita will lead to the infringement of the provisions of The MTP Act, 1971. III. WHETHER THE LAW ENFORCED IN PROSPERIA ACCORDING TO WHICH PREGANACY BEYOND 20TH^ WEEK CAN BE TERMINATED ONLY IF IT IS NECESSARY TO SAVE THE LIFE OF THE MOTHER IS CONSTITUTIONALLY VALID? It is humbly submitted before this Hon’ble Supreme Court that the law enforced in Prosperia which says that pregnancy beyond 20th^ week can be terminated only if it is necessary to save the life of the mother is constitutionally valid. The reason for which is that the pregnancy beyond 20 weeks cannot be terminated as the foetus has the right to life. As the maximum time limit for terminating the pregnancy under the MTP Act is twenty weeks.^8 It is during 20-21st week that the foetus starts showing movements. Therefore, till that period, the foetus is considered non-viable. Thus the time period mentioned in the MTP is valid both with respect to a mother and a child. Hence, the provision of the MTP Act is constitutionally valid. IV. WHETHER PREETI CAN CLAIM ABSOLUTE RIGHT TO TERMINATION OF PREGNANCY AT 30TH^ WEEK OF PREGNANCY LIKE SMITA? It is humbly submitted before this Hon’ble Supreme Court that Preeti, like Smita cannot claim absolute right to termination of pregnancy at 30th^ week of Preganacy because according to the provisions of the MTP Act the termination of the pregnancy cannot extend more than 20 weeks except if there is a grave injury to the mental and physical health of the pregnant woman, or the child if not aborted will suffer from some abnormalities. And in case of Preeti nothing of this situation has arisen because of which she should abort her child. Thus, Preeti should not be granted the right to abort her child. V. WHETHER THE RIGHT CLAIMED BY THE RELIGIOUS GROUP ‘SAVE THE LIFE’ ENJOYS PROTECTION UNDER THE CONSTITUTION OF PROSPERIA AND IF YES WHETHER IT OVERRIDE THE REPORDUCTIVE RIGHTS OF THESE WOMEN? (^8) The Medical Termination of Pregnancy Act,1971, Section 3
ARGUMENT ADVANCED
TO,
THE HON’BLE SUPREME COURT OF PROSPERIA
THE HUMBLE SUBMISSIONS OF THE PETITIONERS
MOST REPECTFULLY SHOWETH:
1.WHETHER THE WRIT PETITION IS MAINTAINABLEBEFORE THIS
HON’BLE SUPREME COURT?
It is humbly submitted before this Hon’ble Supreme Court that the present writ petition is not maintainable, the reasons for which are two-fold in nature, firstly [1.1] that Petitioners has no locus standi to maintain the present petition. Secondly [1.2] that the petition seeks a remedy which does not violates the fundamental right. [1.1] THAT PETITIONERS HAS NO LOCUS STANDI TO MAINTAIN THE PRESENT PETITION It is humbly submitted before the Hon’ble Supreme Court that Petitioners does not have the locus standi to maintain the present petition, the reasons for which are two-fold in nature, firstly , [1.1.1] that no right of Petitioner is violated. S econdly , [1. 1 .2] that no cause of action has occurred. [1.1.1] No right of Petitioners is violated. It is humbly submitted before this Hon’ble Supreme Court that the medical practitioners has been already declared that abortion cannot be happen in those cases because it is not necessary for saving her life^10. The Hon’ble Supreme Court has held in a plethora of cases that when a case concerns a substantial question of law, its jurisdiction under Article 136 can be invoked.^11 (^10) Moot Proposition, para 10 (^11) Narpat Singh v. Jaipur Development Authority, AIR, 2036(SC:2002).; See Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, 3, SCC, 214(SC:2004).
The present case does not involve any substantial question of law neither there is any grave injustice nor public interest.^12 Also, under the purview of the said article the Apex Court is not a Court of Appeal except in special exceptional cases which must be proved by the Appellant.^13 In the case of Clerks & Depot Cashiers v. Calcutta Tramways Co. Ltd .,^14 the court has explained as to what errors must exist so as to call for the interference of the Apex Court which does not apply to the present matter. The expression “Substantial Question of Law” has been interpreted through the course of various judicial pronouncements.^15 This Hon’ble Court has laid down that a substantial question of law essentially includes the violation of the rights of the parties involved.^16 Thus, in the present case, since no right of Petitioners is being violated, the petition is not maintainable. [1.1.2] No cause of action has occurred It is humbly submitted before the Hon’ble Supreme Court that no cause of action has occurred. All the 5 women have been medically examined by the registered medical practitioners and they themselves disallow them to terminate their child as it was not in accordance to the Medical Termination of Pregnancy Act. It can be seen in many of the cases that judiciary decided the cases based on the opinions of Registered Medical Practitioners. In one of the case Ms. Z v. State of Bihar^17 Supreme Court rejected the request of the pregnant woman on the basis of medical opinion. [1.2] THAT NO FUNDAMENTAL RIGHT HAS BEEN VIOLATED It is humbly submitted before the Hon’ble Supreme Court that Article 32 of the Constitution of Prosperia guarantees the people of Prosperia, the right to judicial remedies for the enforcement of rights.^18 The right to judicial remedies is itself a fundamental right and a prima facie breach of it has to be shown in order for a petition to be maintainable under (^12) Pritam Singh v. The State, AIR, 169(SC:1950). (^13) Ibid. (^14) AIR, 78(SC:1957). See also, Dhakeshwari Cotton Mills Ltd. v. CIT, AIR ,65(SC:1955); Hindustan Antibiotics Ltd. v. Workmen,1, AIR, 948(SC:1967): Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Co-workers Union, 2, AIR, 513(SC:1969); Hindustan Tin Works v. Employees 2, SCC, 80(SC:1979). (^15) Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning & Manufacturing Co. Ltd., AIR, 1314(SC:1962). (^16) Ibid. (^17) AIR, SCC(SC:2017) (^18) The Constitution of India, Article 32.
for not affecting the same protection to and unmarried woman in the MTP Act. Several studies conducted suggest that unmarried sexually active women face considerable obstacles to contraceptive use and abortion facilities. And in this case Ms. Smita is an unmarried woman where aborting a child is almost impossible. Unborn child is also considered as a living human being who even deserves the constitutional protection. “The development of a human being begins with fertilization, a process by which two highly specialised cells, the spermatozoon from the male and the oocyte from the female, unite to give rise to a new organism, the zygote”.^27 The scientific evidence then shows that the unborn is a living individual of the species Homo sapiens, the same kind of being as us, only at an earlier stage of development. Each of us was once a zygote, embryo, and foetus, just as we were once infants, toddlers and adolescents. The foetus is a complete moral person from the moment of conception.^28 According to Aristotle, the child in the mother’s womb becomes a personality at the time of conception that is after 40 days. A foetal stage is seen after 8 weeks with that the development of child inside the womb begins. So, once the development of a child starts to take place an embryo is considered as a human being. Hence the unborn has the right to life and abortion is a murder or nearly a wrong as murder. [2.2] THAT AN ABORTION IS AGAINST THE RELIGION It is humbly submitted before the Hon’ble Supreme Court that an abortion is against the Religion. Abortion is a phenomenon that has been deliberated upon since time immemorial and continues to be topic of contention even today. This debate can recapitulate in two terms- Pro Choice and Pro Life. Abortion is multi-faced because it involves the culmination of many aspects such as religion, ethics, medicine and law. Abortion touches social, religious, economic and political aspects. Its impact on the society can be looked at both in positive and negative manner. In the earlier years of forming abortion policy, the Western Civilisations disapproved the practice. In India which is a country with immense social baggage supplemented by societal evils such as illiteracy and poverty, the impact of the MTP Act should be judged in the context of changing social circumstances, values and attitudes. The problem is rampant especially in the rural areas. Hindu medical ethics stem from the principle of ahimsa- or non- violence. When considering abortion, the Hindu way is to choose the (^27) Langman, Jn. Medical Embroyology. 3rd (^) edition. Baltimore: Williams and Wilkins, 1975, p. (^28) Ronald Dworkin, Freedom’s Law: The Moral reading of the AMERICAN constitution, 90 (Oxford University Press ed.,1999)
action that will do least harm to all involved that is to the Mother and Father, the foetus and the society. Hinduism is therefore generally opposed to abortion except where it is necessary to save the mother’s life. So, if we talk about the Hindu Religion than they consider abortion as a sin. According to them the life of an unborn is as important as the life of a person living a peaceful life. Further there are many texts which shows that Hinduism were against the abortion. Classical Hindu text strongly opposes the abortion: One text compares abortion to the killing of a priest. Another text considers abortion a worse sin that killing one’s parents. Another text says that a woman who aborts her child will lose her caste. There were several beliefs of person of different religion with respect to abortion. Traditional Hindus and many modern Hindus also see abortion as a breach of the duty to produce children in order to continue the family and produce new members of the society. Many Hindus regard the production of offspring as a ‘public duty’, not simply and ‘individual expression of personal choice.’^29 The soul and the matter which form the foetus are considered by many Hindus to be joined together from conception. According to the doctrine of reincarnation a foetus is not developing into a person, but is a person from a very early stage. It contains a reborn soul and should be treated appropriately. The Mahabharata refers to child learning from its father while in the womb. If a foetus is aborted, the soul within it suffers a major karmic^30 setback. It is deprived of the opportunities its potential human existence would have given it to earn good karma, and is returned immediately to the cycle of birth, death and rebirth. Thus, abortion hinders a soul’s spiritual progress. Further Ahimsa- non-violence teaches that it is wrong not only to kill living beings, but to also kill embryos. According to Section 3 sub-section 2^31 of the MTP Act,1971, it is mentioned that a pregnancy may not be terminated by a medical practitioner only if the length of the time period exceeds (^29) Lipner,” The classical Hindu View on abortion and the moral status of the Unborn.” (^30) Karma is a Sanskrit word whose literal meaning is ‘action’. (^31) Section 3(2) of Medical of Termination of Pregnancy Act, 1971 states that: Subject to the provisions of sub-section (4), pregnancy may be terminated by a registered medical practitioner- a) Where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or
