Memorials Respondent1.1

8/2/2019 Memorials Respondent1.1

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ON BEHALF OF THE RESPONDENT

BEFORE THE HONBLE SUPREME COURT OF INDIA

Writ Petition no. : ______ /2012

Ms. Sweta Tripati Petitioner

V/S

1 Union of India

Represented through Secretary

Ministry of Law and Justice

2 Union of India

Represented through Secretary

Ministry of Women and Child Welfare Respondents

ON THE SUBMISSION TO THE HONBLE SUPREME COURT OF INDIA

MEMORIALS FILED ON BEHALF OF THERESPONDENT


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TABLE OF CONTENTS

CONTENT PAGES

A. INDEX OF AUTHORITIES

B. STATEMENT OF JURISDICTION

C. STATEMENT OF FACTS

D. STATEMENT OF ISSUES

E. ARGUMENTS ADVANCED

F. PRAYER


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INDEX OF AUTHORITIES

Books referred:

1. Constitution of India M.P. Jain

2. Constitution of India Shukla

3. Indian Penal Code - Mishra

4. Human Rights - Dr. H O Agarwal

Table of Cases:

1. Shrikishan Singh v. State of Rajasthan

2. State of Bombay v. Balsara F.N

3. Anukul Chandra Pradhan v. Union of India

4. B.K. Parthasarathi vs State of Andhra Pradesh

5. M. Durgaiah v. Agent, Tandur Colleries

6. P.K. Biswas v. Indian Institute of Chemical Biology

7. Singh v. State of Punjab


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Statement of Facts

1. Sweta Tripati, an Advocate practicing in the High Court of Karnataka, married to Rahul

Sadanandan, an Assistant Professor in Bannamma School of management studies

Bengaluru. After two months of marriage they decided to move to Flat close to the city

taking into the convenience of both.

2. As a practicing Advocate Sweta was workaholic and spends more time in law firm with

passing days relation between these two got strained. After five months of marriage the

situations got worst and due to the strained relation she was sent home by her husband.

3. Thereafter, he sent a notice through his advocate to Sweta demanding divorce. By that time

she was three and a half months pregnant and was under the treatment of Dr. Girirsh,

gynecologist, a far relative of Sweta. Three days after receipt of the notice, Sweta sought

advice from Doctor to go for abortion and the same was successfully done at medical Trust

Cooperative Clinic Mysore.

4. Aggrieved by the fact Rahul sought information from the hospital authorities under RTI

Act. Based on the records received Rahul files a compliant before the Judicial Magistrate

First Class, Mysore against Sweta and Girish.

5. During the pendency of proceedings Sweta approached the High Court U/S 482 of CrPC to

quash FIR and to stop proceedings therewith. But the petition was dismissed by the High

Court.

6. Aggrieved by this Sweta approached Honble Supreme Court of India through SLP. She

also filed Writ petition contending that the position retained by Indian Law in relation to

reproductive rights of a woman and termination of pregnancy is against womans right to

reproductive autonomy. In addition she also challenges the act of hospital authorities in

disclosing information is violation of her Right to privacy.

7. NGO named CRIPA dedicated to protection of child rights sought permission of Supreme

Court to implead in the Writ petition claiming that the position retained in the IPC and

other law related to reproductive rights of women not to be held unconstitutional.


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8. Leave was granted by the Supreme Court and directed to be heard along with Writ Petition

and placed before Constitutional Bench.

STATEMENT OF JURISDICTION

This Writ Petition is filed before this Honble Supreme Court of India, in reply to the petition filed

by the petitioner, invoking the Writ jurisdiction under Article 32(1) of the Indian Constitution

which conferred right to approach Supreme Court as a matter of right when there is a violation

of the rights conferred under Part III of the Indian Constitution.


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ISSUES RAISED

1. Whether reproductive rights and right abortion is unconstitutional?

2. Whether the act of the hospital authorities is infringement of right to privacy

3. Whether unborn child in the mothers womb has a fundamental right to life?


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ARGUMENTS ADVANCED

ISSUE No. 1

1. Whether reproductive rights of women are unconstitutional?

The respondent respectfully submits as under:-

No. Reproductive rights of women are not unconstitutional.

According to UNFPA United Nation Population Fund, reproductive rights includes

1. Reproductive health as a component of overall health, throughout the life cycle, for both

men and women2. Reproductive decision-making, including voluntary choice in marriage, family formation

and determination of the number, timing and spacing of one's children and the right to have

access to the information and means needed to exercise voluntary choice

3. Equality and equity for men and women, to enable individuals to make free and informed

choices in all spheres of life, free from discrimination based on gender


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4. Sexual and reproductive security, including freedom from sexual violence and coercion,

and the right to privacy.

The killing of innocent is a crime and the fetus is also an innocent life. Embryo or fetus is a

human being entitled to protection, from the moment of conception and therefore has a right to life

that must be respected.

According to Article 21 of the Indian Constitution No person shall be deprived of his life and

personal liberty except according to procedure established by law.

Medical Termination of Pregnancy Act prescribes the procedure for termination of a child.

Medical Termination of Pregnancy Act is constitutionally valid. Article 14 does not prohibit

reasonable classification. It is clear that men and women do not fall under the same category when

it comes to pregnancy. Therefore, that Act is not arbitrary either. Article 21 and the Right to

Privacy are not infringed as the act clearly provides three grounds on which termination can take

place, viz., on humanitarian grounds, as a health measure and on eugenic grounds. The procedure

established by law is a reasonable restriction on Article 21. International covenants are majorly in

consonance with the Indian Law regarding the issue of Medical Termination of Pregnancy.

The Medical Termination of Pregnancy Act (hereinafter referred to as the MTP Act) is

constitutionally valid.

The concept of equality and equal protection of laws guaranteed by Article 14 in its proper

spectrum encompasses social and economic justice in a political democracy. Shrikishan Singh v.

State of Rajasthan1it was held that, Equal protection means the right to equal treatment in similar

circumstances, both in the privileges conferred and in the liabilities imposed. However, the

principle of equality does not mean that every law must have universal application for all persons

who are not by nature, attainment or circumstances in the same position, as the varying needs of

different classes of persons often require separate treatment. It would be inexpedient and incorrect

to think that all laws have to be made uniformly applicable to all people in one go.

In State of Bombay v. Balsara F.N2. it was held that the principle enshrined in Article 14 does

not take away from the state the power of classifying persons for legitimate purposes.

1 1955 (2) SCR 5312 1951 SCR 682


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In Anukul Chandra Pradhan v. Union of India3it washeld that the legislature is competent

to exercise its discretion and make classification. Every classification is in some degree likely to

produce some inequality. Differential treatment does not per se constitute violation of Art. 14. It

denies equal protection only when there is no reasonable basis for the differentiation.

"B.K. Parthasarathi vs. State of Andhra Pradesh4 it was held that: The right to make a

decision about reproduction is essentially a very personal decision either on the part of the men or

women.

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. It was provided for

by the British in their enactment of the Indian Penal Code in 1860. Section 312 of the Indian Penal

Code too protects termination of pregnancy described as miscarriage; if it is done in good faith for

the purpose of saving the life of the woman. Similarly Section 315 of the Indian Penal Code

protects any act done with intent to prevent child from being born alive or causing it to die after its

birth if such act has been done in good faith for the purpose of saving the life of the mother.

Therefore, a Reproductive right of women under Indian law is not unconstitutional.

3 (1997) 6 SCC 14 AIR 2000 AP 156


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ISSUE No.2

Whether the act of the hospital authorities is infringement of right to privacy?

No. The act of the hospital authorities is not infringement of right to privacy. Medical trust

co operative clinic at Mysore is not a State under Article 12 of Indian Constitution, Article 12 of

the Constitution provides that, in this part unless the context otherwise requires the states includes:

a. The Government and the parliament of India

b. The Government and the legislature of each state and

c. All local and other authorities within the territory of India

d. All local and other authorities under the control of Government of India.

The Medical Trust Co operative Clinic Mysore does not fall under the definition of State under

Article 12 of the Indian Constitution.

In M. Durgaiah v. Agent, Tandur Colleries5, a Division Bench of the A.P. High Court

held that merely because a statute or a rule having the force of a statute requires a company or

some other body to do a particular thing, that company would not possess the attributes of a

statutory body and accordingly no Mandamus could be issued to such a body.

In the present case the hospital authorities are governed by the RTI Act which does not mean that

they are State under Article 12 of the Indian Constitution.

5 AIR 1961 AP 400


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P.K. Biswas v. Indian Institute of Chemical Biology6, The question in each case would

be--whether in the light of the cumulative facts as established, the body is financially, functionally

and administratively dominated by or under the control of the Government. Such control must be

particular to the body in question and must be pervasive. If this is found then the body is a State

within Article 12. On the other hand, when the control is merely regulatory whether under statute

or otherwise, it would not serve to make the body a State."

In the present case the hospital authorities financially functionally and administratively

under the control of the government.

InSingh v. State of Punjab7 it was held that the literal meaning of privacy, as defined in

the New Oxford English Dictionary is the absence or avoidance of publicity or display; the state

or condition from being withdrawn from the society of others, or from public interest; seclusion.

In the present case the information is disclosed to husband and not to public. As such privacy is not

infringed.

67


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Issue No.3

Whether unborn child in the mothers womb has a fundamental right to life?

Yes. Unborn child in the mothers womb has a fundamental right to life. This right to life has been

enshrined in the Article 21 of the Indian Constitution which states No person shall be deprived ofhis life and personal liberty except according to the procedure established by law

Universal Declaration, says in Article 6, paragraph 1 that Every human being has the inherent

right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

As in the Declaration, the scope of every human being is not defined but neither is it limited, and

certainly the ordinary meaning of the term is unambiguous. Further, in the next sentence, no one

must mean no human being or it means nothing. Paragraph 5 of the same Article provides in part

that Sentence of death shall not be carried out on pregnant women. This declaration states the

importance of unborn child.

A child in mothers womb is regarded as born and treated as person for many purposes. A

direct can be made to a child in womb. Under Hindu Law, the proprietory rights of an unborn

child are recognized and it is governed by the rule of perpetuity.

The Constitution of India does not define the word person. But under section 304A of IPC

the word person includes an unborn child. A child in womb can be regarded as a living entity with

a life of its own. As Art 21 is available to a person so sections 312, 313, 316 of IPC has by

implication recognized the right to life of an unborn child.


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Under the Criminal Law, an injury to a child in the womb is a punishable offence. Causing

death to a child in the womb and causing abortion or miscarriage are made punishable under

section 312, 313 and 316 of IPC.

So from this foregoing provision of Constitution of India and Indian Penal Code it can be

inferred that a child in mothers womb has rights protected by law and have legal personality. The

Indian Legislature has enacted the M.T.P Act under which abortion is allowed under certain

specified conditions laid down in section 3 of the M.T.P Act, 1971.

PRAYER

The Petitioner herein most respectfully and humbly prayed that this Hon'ble Court may be

graciously be pleased to declare:

1. Section 312 of Indian Penal Code and Section 3 of Medical Termination of Pregnancy

Act as constitutional.

2. Dismiss the Writ petition

3. To pass such other order or orders as this Hon'ble Court may deem fit and proper in the

facts and circumstances of the case.

Memorials Respondent1.1

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