UNIVERSITY OF DELHI

FACULTY OF LAW

MOOT COURT MEMOIAL,2019

In the Hon’ble supreme court of India, NEW DELHI

Case Concerning, ‘Special Leave Petition under Article 136 of the constitution of India
and fundamental Right of a person to Life’

In the Matter of
Mrs. Nandini …………………………………………………… (Appellant)

V.

Union of India ….……………………………………………………(Respondent)

On submission to the Hon’ble Supreme Court of India

COUNSEL FOR THE RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………….

INDEX OF AUTHORITIES………………………………………………………

STATEMENT OF JURISDICTION………………………………………………

STATEMENT OF FACTS………………………………………………………….

ISSSUES RAISED…………………………………………………………………

SUMMARY OF ARGUMENTS…………………………………………………

ARGUMENTS ADVANCED…………………………………………………….

PRAYER FOR RELIEF………………………………………………………….

 LIST OF ABBREVIATIONS

1. & AND

2. SEC. SECTION

3. AIR ALL INDIA REPORTER

4. PIL PUBLIC INTEREST LITIGATION

5. MTPA MEDICALTERMINATIONOF
PREGNANCY ACT
6. HON’BLE HONOURABLE

7. ART ARTICLE

8. SC SUPREME COURT

9. SCC SUPREME COUR CASES

10. UOI UNION OF INDIA

11. V. VERSUS

12. SCR SUPREMECOURT REVIEWS

13. BOM. BOMBAY

14. CRI. CRIMINAL

INDEX OF AUTHORITIES

List of Cases

Peoples Union for Democratic rights v. Union of India, A.I.R 1982 S.SC. 1473.
Judges Transfer Case, A.I.R. 1982 S.C. 149.
Nikita Mehta V. State of Maharashtra
Jairaj Shah Case
Roe V. Wade, 410 U.S. 113 (1973)
Sucheta Srivastava V. Chandigarh Administration, (2009) 9 S.C.C
Gian Kaur V. State of Punjab, A.I.R.1996 S.C.946
P. Rathinam V. Union of India, A.I.R.1994 S.C1844(1994)3 S.C.C.394
M.S. Dubal V. State of Maharashtra, 1987 Cri.L.J.743(Bom.)
Naresh Marotrao Sakhre V. Union of India,1995 Cri. L.J 96 (Bom.)
M.C Mehta V. Union of India (2004) 6 S.C.C588, 613: A.I.R 2004 S.C. 4618.
Pritam Singh V. The State, A.I.R 1950 S.C 169: 1950 S.C

List of Books

1. Durgadas Basu, Constitutional Law of India (Wadhwa And Company New

Delhi,2008)
2. M.P Jain, Indian Constitutional Law of India (Eastern Book Company New Delhi
2009).
3. V. N Shukla, Constitution of India (Eastern Book Company New Delhi 2009).

List of Online Sources

 www.manupatra.com
 www.indlaw.com
 www.scconline.com
 www.unilexlegal.com
LIST OF STATUTES REFERRED

 The constitution of India, 1950

 Medical termination of pregnancy act, 1971
 Indian penal code,1860
 Hindu succession act, 1956
 Transfer of property act, 1882
 Limitation act, 1963

STATEMENT OF JURISDICTION

The petitioner approaches the honourable supreme court of India through special leave petition
mentioned under article 136 and article 21 of the constitution of India, 1950. The respondents
respectfully submit to this jurisdiction invoked by the petitioners.
 STATEMENT OF FACTS

1. MRS.NANDINI, THE APPELLANT IS AN INHABITANT OF MUMBAI

AND WAS EXPECTING HER FIRST CHILD. IN THE 22TH WEEK OF
HER PREGNANCY, SHE WAS INFORMED BY HER CONSULTING
DOCTORS THAT THE FOETUS IN HER WOMB WAS DIAGNOSED
FOR CONGENITAL HEART DISEASE. HER DOCTORS ALSO TOLD
HER THAT AFTER BIRTH THE CHILD WOULD NEED AN
ARTIFICIAL PACEMAKER FOR ITS HEART & THE QUALITY OF
ITS LIFE WAS LIKELY TO BE POOR. THEY ALSO CAUTIONED
THAT THERE MIGHT BE SOME PROBLEMS FOR THE APPELLANT
TO CONCEIVE AGAIN AND THEREFORE, ADVISED HER TO HAVE
AN ABORTION IMMEDIATELY.FACED WITH THIS DILEMMA,
THE APPELLANT AND HER HUSBAND SOUGHT OPINION FROM
BOARD OF DOCTORS OF A RECOGNISED GOVERNMENT
HOSPITAL. THE BOARD CONFIRMED THE FINDING OF HER
GYNAECOLOGIST BUT REFUSED TO PERFORM ABORTION
SAYING THAT ABORTION WAS NOT PERMITTED BEYOND THE
20TH WEEK OF PREGNANCY EXCEPT WHEN THE LIFE OF
MOTHER WAS IN DANGER.

2. BEING FACED WITH THE SAID LEGAL OBSTACLE, THE

APPELLANT SOUGHT LEGAL ADVICE & THEREAFTER FILE
WRIT PETITION UNDER ART. 226 OF THE CONSTITUTION OF
INDIA BEFORE THE HONOURABLE BOMBAY HIGH COURT
CHALLENGING THE CONSTITUTIONALITY OF THE RELEVENT
PROVISONS OF THE MEDICAL TERMINATION OF PREGNANCY
ACT, 1971 WHICH BANS TERMINATION OF A PREGNANCY
BEYOND 20TH WEEKS & ALSO IN THE ALTERNATIVE, MADE A
COMPASSIONATE PLEA TO THE COURT FOR PERMITTING THE
ABORTION ON MEDICAL GROUNDS AS AN EXCEPTIONAL CASE.
3. AT THE TIME OF HEARING OF THE PETITION, THE HIGH COURT
APPOINTED AN INDEPENDENT THREE MEMBER MEDICAL
EXPERT COMMITTEE OF DOCTORS FROM THE STATE TO RUN
JM HOSPITAL TO EXAMINE THE APPELLANT & HER 22 WEEKS
OLD FOETUS & DIRECTED THEM TO SUBMIT THEIR REPORT ON
THE ISSUE .ACCORDINGLY, THE APPPELLNAT ATTENDED THE
MEDICAL EXAMINATION CONDUCTED BY EXPERT
COMMITTEE, WHICH SUBMITTED THEIR REPORT TO THE
HONOURABLE HIGH COURT. IN THE SAID REPORT,THE EXPERT
COMMITTEE NOTED THAT THEY APPREHENDED A 60%
CHANCES OF INCAPCITATED &HANDICAP SURVIVAL OF THE
FOETUS OWING TO A POSSIBLE CONGENITAL HEART DISEASE
&FURTHER OBSERVED THAT THE SAID ABNORMALITY WOULD
NOT IN ANY MANNER WHATSOVER HAMPER OR EFFECT THE
APPELLANT’S HEALTH OR HER ABILITY TO CONCEIVE IN
FUTURE .THE EXPERT COMMITTEE, WITH A MAJORITY OF TWO
MEMBERS & ONE DISSENTING, RECOMMENDED AGAINST
ABORTION OF THE FOETUS AT SUCH AN ADVANCED STAGE OF
PREGNANCY SINCE THE CHILD WOULD BE CAPABLE OF
LEADING A NORMAL LIFE WITH THE ASSISTANCE OF AN
ARTIFICIAL PACEMAKER .

4. RELYING UPON THE REPORT SUBMITTED BY THE EXPERT

COMMITTEE, THE HONOURABLE HIGH COURT DISMISSED THE
WRIT PETITION WITH A RULING THAT THE LAW OF THE LAND
DID NOT PERMIT TERMINATION OF PREGNANCY BEYOND THE
20TH WEEKS & ALSO REMARKED THAT, IN VIEW OF THE EXPERT
COMMITTEE REPORT, THE CASE IN HAND WAS NOT AN
EXCEPTIONAL ONE TO CONSIDER THE COMPASSIONATE PLEA
OF THE APPELLANT ON MEDICAL GROUNDS. THE ISSUE
PERTAINING TO THE CONSTITUIONALITY OF THE MEDICAL
 TERMINATION OF PREGNANCY ACT, 1971 WAS DISMISSED AS
NOT PRESSED BY THE APPELLANT.

5. IN THE MEANWHILE SAHAYOG A NON GOVERNMENTAL

ORGANIZATION NGO FORMED WITH THE OBJECT OF
PROMOTING SOCIAL CAUSES AND HEALTH CARE FOR WOMEN
IN INDIA FILED A PUBLIC INTEREST KITIGATION IN THE
HONOURABLE SUPREME COURT OF INDIA CHALLENGING THE
CONSTITUTIONAL VALIDITY OF SEC. 3(2) OF THE MEDICAL
TERMINATION OF PREGNANCY ACT, 1971 ON THE GROUND
THAT IT VIOLATED THE FUNDAMENTAL RIGHT OF A PERSON
TO LIFE UNDER ART.21 OF THE CONSTITUTION OF INDIA,
WHICH ENCOMPASSES WITHIN ITSELF THE RIGHT TO
ABORTION AND PERSONAL SAFETY OF A PREGNANT WOMAN.
ALONG WITH THE PETITION, THE NGO ALSO FILED AN
APPLICATION BEFORE THE HONOURABLE APEX COURT THAT
THE JUDGEMENT PASSED BY THE HONOURABLE SUPREME
COURT OF INDIA IN THE CASE OF GIAN KAUR V. STATE OF
PUNJAB (REPORTED AT AIR 1996 SC 946) BE RECONSIDERED BY
A LARGER BENCH. AT THE TIME OF HEARING OF THE SAID
APPLICATION,THE SUPREME COURT BEING PRIMA FACIE
SATISFIED THAT THE ISSUE RELATED TO TERMINATION OF
PREGNANCY BEING A OFFSHOOT OF THE ISSUE OF
EUTHANASIA REQUIRED CONSIDERATION BY A LARGER
BENCH,ALLOWED THE SAID APPLICATION WITH A
RECOMMENDATION TO THE CHIEF JUSTICE OF INDIA TO
CONSTITUE A LARGER BENCH OF SEVEN JUDGES TO
RECONSIDER THE RATIO OF GIAN KAUR V. STATE OF PUNJAB
CASE WITH REGARDS TO THE ISSUE OF TERMINATION OF
PREGNANCY AND FINALLY LAY TO REST THE SOCIALLY
IGNITED ISSUE INVOLVED THEREIN.
6. ON LEARNING ABOUT THE ABOVE REFERENCE, THE
APPELLANT IN THE 22ND WEEK OF HER PREGNANCY DECIDED
TO CHALLENGE THE ORDER/JUDGEMENT PASSED BY THE
HONOURABLE BOMBAY HIGH COURT AND FILED A SPECIAL
LEAVE PETITION UNDER ART. 136 OF THE CONSTITUTION OF
INDIA IN THE HONOURABLE APEX COURT. AT THE ADMISSION
STAGE OF THE SPECIAL LEAVE PETITION, THE ADVOCATES
FOR THE APPELANT UPON AN ORAL MOTION REQUESTED THE
HONOURABLE COURT THAT THE ISSUE INVOLVED IN THE SLP
WAS COMMON TO THE ABOVE REFFERED PUBLIC INTEREST
LITIGATION AND THEREFORE, THE SAME BE CLUBBED THERE
WITH AND HEARD FINALLY AT THE ADMISSION STAGE ITSELF.
THE SAID REQUEST WAS ACCEPTED BY THE HONOURABLE
COURT AND THE SPECIAL LEAVE PETITION AND PUBLIC
INTEREST LITIGATION WERE DIRECTED TO BE CLUBBED
TOGETHER AND PLACED FOR HEARING AND FINAL DISPOSAL
AT THE ADMISSION STAGE BEFORE THE CONSTITUTIONAL
BENCH OF THE SUPREME COURT OF INDIA.

ISSUES RAISED

1. WHETHER THE CHALLENGE OF CONSTITUTIONAL

VALIDITY OF SECTION 3(2) OF THE MEDICAL TERMINATION
OF PREGNANCY ACT, 1971 IS JUSTIFIABLE?

2. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL

RIGHT OF A PERSON TO LIFE UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA?

3. WHETHER IS THERE ANY NEED FOR RECONSIDERATION OF

THE CASE OF GIAN KAUR V. STATE OF PUNJAB?

4. WHETHER THE FILING OF SPECIAL LEAVE PETITION UNDER

ARTICLE 136 OF CONSTITUTION OF INDIA JUSTIFIABLE?
 SUMMARY OF ARGUMENTS

1. WHETHER THE CHALLENGEING OF CONSTITUTIONAL VALIDITY OF

SECTION 3(2) OF THE MEDICAL TERMINATION OF PREGNANCY ACT,
1971 IS JUSTIFIABLE?

SEC.3 OF MTPA state that – When pregnancies may be terminated by registered medical
practitioners-

(1) Notwithstanding anything contained in the IPC (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under the code or under any law for
the time being in force, if any pregnancy is terminated by him in accordance with
the provision of this act.
(2) Subject to the provision of sub sec. (4), a pregnancy may be terminated by a
registered medical practitioner, -
(a) When the length of the pregnancy does not exceed twelve weeks if such medical
practitioner is, or
(b) When 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 –

(1) 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
(2) There is a substantial risk that if the child born. It would suffer from such
physical or mental abnormalities to be seriously handicapped.

In this case after the medical examination of the appellant the expert committee in their
report recommended against abortion of the foetus at such an advanced stage of pregnancy
since the child would be capable of leading a normal life with the assistance of an artificial
pace maker ,also it would not hamper the health of the appellant nor she will face any problem
to conceive in future. And aborting at such an advanced stage may put the life of the appellant
at risk, as abortion is a risky process and it has many side-effects also baby become viable at
this stage. Aborting the child only because he will be just less than perfect is not justifiable &
thus, challenging the validity of sec.3(2) of the MTPA too is in no way justifiable.

2. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF

A PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDIA?

it is humbly submitted before the Hon’ble Court that there is no kind of violation of fundamental right
of a person to life under Art 21 of the constitution of India. Art 21 of the Constitution of India. Art 21
assures every person right to life & personal liberty. In this case the appellant approached gynaecologist
when the foetus was over 20 weeks old, it was not legally permissible for the appellant to abort the
foetus at such advanced stage of pregnancy since baby becomes viable at this stage. In other words the
baby is no longer indispensably dependent on its mother’s body & stands a chance of survival upon
delivery, albeit with suitable aids at this premature stage & foetus being a human being, entitled to
protection, from the moment of conception & therefore has right to life that must be respected.
According to this argument, abortion is homicide. There is no way any sort of violation of the rights of
the appellant, but if she aborts her then it will definitely infringe the rights of that defenceless unborn
child.

3. WHETHER IS THERE ANY NEED FOR RECONSIDERATION OF THE CASE

OF GIAN KAUR V. STATE OF PUNJAB?

IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE COURT THAT THERE IS NOT

AT ALL ANY NEED TO RECONSIDER THE CASE OF GIAN KAUR V. STATE OF
PUNJAB, AS THE FACTS OF THE CASE OF GIAN KAUR IS ALTOGETHER
DIFFERENT &DEALS WITH SUICIDE /ABETMENT OF SUICIDE SOMEWHERE
LINKED WITHH RIGHT TO LIFE UNDER ART. 21 . UNDER ART. 21 THE TERM LIFE
HAS A VERY EXPENSIVE MEANING & WE CANANOT BRING ANY RELEVANCY
FROM THE CASE OF GIAN KAUR BY LINKING BOTH THE CASE, AS THIS CASE IS
ABOUT ABORTION LINKED WITH RIGHT TO LIFE. HON’BLE HIGH COURT OF
BOMBAY PLACED ITS JUDGEMENT BASED ON THE REPORT OF EXPERT
MEDICAL COMMITTEE WHO WERE AGAINST THE ABORTION AS THERE WAS NO
HARM WHATSOEVER TO THE APPELLANT, ALSO THE CHILD WS CAPABLE OF
LEADING A NORMAL LIFE WITH THE ASSISTANCE OF ARTIFICIIAL
PACEMAKER.SO THERE IS NO POINT OF ABORTION AS IT IS NOW ILLEGAL TOO
& RECONSIDERING THE CASE OF GIAN KAUR WOULD BE MERE WASTE OF TIME
OF THE COURT.

4. WHETHER THE FILING OF SPECIAL LEAVE PETITION UNDER

ARTICLE 136 OF CONSTITUTION OF INDIA JUSTIFIABLE.?

IT IS HUMBLY SUBMITTED BEFORE THE HON’BLE COURT THAT THE FILING OF

SPECIAL LEAVE PETITION UNDER ART 136 OF CONSTITUTION OF INDIA IS NOT
JUSTIFIABLE. SPECIAL LEAVE PETITION MEANS THAT YOU TAKE SPECIAL
PERMISSION TO BE HEARD IN APPEAL AGAINST ANY HIGH COURT/TRIBUNAL
VERDICT. USUALLY ANY ISSUE DECIDED BY THE STATE HIGH COURT IS
CONSIDERED AS FINAL, BUT IF THERE EXIST ANY CONSTITUTIONAL ISSUE OR
LEGAL ISSUE WHICH CAN ONLY BE CLARIFIED BY THE SUPREME COURT & THIS
IS HEARD AS A CIVIL OR CRIMINAL APPEAL AS THE CASE MAY BE. GOING TO
THE SUPREME COURT IN APPEAL SHOULD NOT BE CONSIDEED A MATTER OF
RIGHT BY ANYONE BUT IT IS MATTER OF PRIVILEGE WHICH ONLY THE
SUPREME COURT WILL GRANT TO ANY INDIVIDUAL IF THERE EXIST AN
IMPORTANT CONSTITUTIONAL OR LRGAL ISSUE INVOLVED IN ANY CASE THAT
WAS NOT PROPERLY INTERPRETED BY THE CONCERNED HIGH COURT AGAINST
WHOSE JUDGEMENT YOU APPPROACH THE HIGHEST COURT OF THE COUNTRY
NOT OTHERWISE. AFTER GOING THROUGH THE FACTS OF THIS CASE WE CAN
SEE THAT IT IS NOT A SPECIAL/IMPORTANT/EXCEPTIONAL CASE WHUICH
REQUIRES ANY SORT OF SPECIAL ATTENTION.THUS, THE FILING OF SLP UNDER
ART 136 OF THE CONSTITUTION OF INDIA IS NOT JUSTIFIABLE.
 ARGUMENTS ADVANCED

1. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF

SECTION 3(2) OF THE MEDICAL TERMINATION OF PREGNANCY
ACT,1971 IS JUSTIFIABLE?

It is humbly submitted before the hon’ble court that challenging the constitutional validity of
sec. 3(2) of the medical termination of pregnancy act,1971 is not justifiable.

sec. 312 of the Indian penal code read with the medical termination of pregnancy act, 1971
where all the restrictions imposed herein, including the time limit of 20 weeks, other than the
ones to ensure good medical conditions, infringe the right to abortion & the right to health,
which emanate from right to life as guaranteed by art. 21 of the constitution. any law forbidding
an abortion under good medical conditions is immoral & in addition unconstitutional, for it
violates her right to control her property – her body as well as her life, liberty & happiness.

The MTPA,1971 permits abortion to be performed only when the pregnancy poses a risk to the
life of the pregnant woman, or, of grave injury to her physical or mental health, or, when there
is a substantial risk of life of the child being born with physical or mental abnormalities so as
to be seriously handicapped. A registered medical practitioner may terminate the pregnancy up
to twelve weeks of gestation but where the period is between twelve to twenty weeks, the
opinion of two registered medical practitioners is required. The limit of twenty weeks may be
crossed only when the procedure is performed to save the life of the woman. Importantly,
pregnancy that results from rape or failure of contraceptive device between a married couple is
viewed as causing grave injury to the mental health of the woman.

The Nikita Mehta case has given rise to a raging debate on abortion laws in the country. In
this case the gestational period had progressed much beyond the prescribed period & was past
twenty-five weeks. The petitioners pleaded that the defect in the heart of the unborn child was
detected at late stage. The Mumbai high court held that no categorical opinion of experts had
emerged to state that the child would be born with serious handicaps. The court thus denied
recourse to medical termination of the pregnancy & an opinion emerged that terminating the
life of a viable unborn on grounds of possible handicap is akin to mercy killing.

We also need to consider whether a further extension would lead to possibility of obnoxious
agreements between the woman, her family & the physician to terminate the pregnancy if the
baby is likely to be born less than the perfect, even if such imperfection may be accommodated
with the little effort and life threatening? It must be appreciated that a civilized society &
welfare state must consider the rights of the unborn who are defenceless individuals incapable
of taking decisions or making informed choices about their right to life.

Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith
for the purpose of saving life of the woman, be punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished
with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine.

Nikita Mehta v. state of Maharashtra.

The Society Certainly Does Not Suggest Termination of Life of Handicapped Adults, Then
Why Must It Take A Harsh Stand Against Vulnerable Individuals Who Are Unborn Babies?

The next issue is the precise determination of what constitutes a malformation & what may
be termed as a severe mental or physical deformity. With the growth of science & medicine
never conditions are being described as diseases or deformities. At the same time, new cures
are also emerging.so what needs to be viewed as a handicap &what need not becomes
important. Let us not forget those people who despite being severely hadicapped have made
outstanding contributions to society, for example Dr. Stephen hawking, the world-renowned
scientist who suffers from extremely debilitating motor neuron disease & Ludwig van
Beethoven, one of the greatest music composers of all times despite his deafness. At that
time, had there been mechanisms to detect such disabilities in the foetus, these people may
never have been born. In other words, we cannot completely ignore the possibility of
committing grave mistakes by extinguishing potentially great life with our limited
understanding of the future & our exaggerated fear of deformity. Advancement in
medical sciences bestows great power on humanity that must be used for noble causes.
Unfettered or arbitrary misuse of such power may lead to grave consequences for the society
on multiple fronts.
Indian constitution says every person in India has right to live & no one can terminate
one’s life without court’s permission. Indian abortion law doesn’t permit termination of
pregnancies after 20 weeks unless it is fatal to mother.

The next question that arises is why the cut-off must be marked at twenty weeks? The
answer lies in the fact that the baby becomes viable at this stage. In other words, the baby is
no longer indispensably dependent on its mother’s body &stands a chance of survival upon
delivery, albeit with suitable aids at 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.

Thus, in addition to state interest, the interests of the fully formed unborn child at this stage
become noteworthy. The unborn find explicit or implicit protection through many
international & national laws. The united nations convention on the rights of the child
recognized the need for special protection of children before & after birth on account of
their physical & mental immaturity.

In this case, the appellant wants abortion but only because the child to be born with hole in
heart. A person with hole in heart can live normal life. Now -a-days after a surgery, a
pacemaker can be planted in, the heart, battery of which lasts for 10 years & after 10 years
again one has to undergo surgery. I give an example of case.

Jairaj shah was staying at juhu in Mumbai with his wife, harima, had the same problem in
1972, but they decided to give birth to the child. Doctors estimated expenses to 1.50 lacs at
that time (1971). Family of jairaj & harima gave them some money; some religious trusts also
donated the remaining amount. When the child turned 10, he was operated & pacemaker was
kept in the heart. Now the child is 54 years old & is healthy.
In this case, it sounds as if the appellant wants a child, but they are not ready to face any
challenge. For them, the above case may force them to think again.

Many people don’t realize that abortion is actually very dangerous procedure. While
techniques are improving, there is still a high probability of negative physical side- effects.
Also, there are almost certain negative psychological side-effects. Abortion is unnatural
process that interrupts one of the primary functions of women’s body. A woman’s body
naturally resists the abortion, which causes physical & emotional problems. One of the most
disturbing things about this is that many women are not informed about these side-effects.
87% hospitalized women were ones with complications from legal abortions, & 91% had
treated patients with complications from legal abortions. There are several doctors who
reported patients dying from legally induced abortions. Either abortion is induced or
spontaneous it

“the child, by reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth”

Independently & significantly increased the risk of subsequent development of the secondary
infertility. Here the expert committee were against the abortion from which we can derive
that if abortion would have taken place then there might have been risk to the life of appellant
or some minor risks.

Here, they know with what problem, their child will be born. What if the same problem may
be detected after the birth? Even if we keep legal issue aside, morally too, they should not go
for abortion .and challenging the validity of sec.3(2) of the MTPA is in no way justifiable.
 2. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTALRIGHT OF A
PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDIA?

It is humbly submitted before the hon’ble court that there is no violation of fundamental right
of a person to life whatsoever under art 21 of the constitution of India of the appellant.

The art.21 of Indian constitution provide right to life and right to privacy and art.6(1) of the
international covenant on civil and 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 the 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 and
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 and technology, nowadays this right has
been legally sanctioned by most of the nations after the famous decision of roe vs wade 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’’’.

In the case of suchita srivastava, the court held that there is no doubt that a woman’s right to
make reproductive choices is also a dimension of “personal liberty” as understood under art.
21 of the constitution of India. But there is also a “compelling state interest “in protecting the
life of the prospective child and, therefore the termination of the pregnancy could only be

Permitted under the condition specified in the MTPA 1971 which are to be viewed as
reasonable restrictions placed on the exercise of reproductive choices.

SEC. 3 OF THE MTP ACT SAID THAT PREGNANCY CAN BE TERMINATED IF:
#THERAPEUTIC INDICATION: IN ORDER TO PREVENT INJURY TO THE
PHYSICAL OR MENTAL HEALTH OF THE WOMAN.

# EUGENIC INDICATION: IN VIEW OF THE SUBSTANTIALRISK THAT IF THE

CHILD WERE BORN, IT WOULD SUFFER FROM SUCH PHYSICAL OR MENTAL
ABNORMALITIES AS TO SERIOUSLY HANDICAP.

#HUMANITARIAN INDICATION: AS THE REGNANCY IS ALLEGED BY A

PREGNANT WOMAN TO HAVE BEEN CAUSED BY RAPE.

ARTICLE 21 LAYS DOWN THAT NO PERSON SHALL BE DEPRIVED OF HIS LIFE PERSONAL
LIBERTY EXCEPT ACCORDING TO ‘PROCEDURE ESTABLISHED BY THE LAW’.

410 U.S. 113 (1973)

SUCHITA SRIVASTAVA V. CHANDIGARH ADMINISTRATION, (2009) 9 SSC 1.

#Social indication: as the pregnancy has occurred as result of failure of any contraceptive
device or method used by married woman or her 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 government hospital or at a place

approved by the government and two medical practitioners are necessary if the pregnancy is
more than 12 weeks one medical practitioner can terminate it.

# the consent of woman alone s required if she above 18 year of age, but if she is minor or
lunatic, consent of the guardian is necessary.
Sec. 312 of the Indian penal code read with the medical termination of pregnancy act,1971
where all the restrictions imposed therein, including the time limit of 20 weeks other than the
ones to ensure good medical conditions, infringe the right of abortion and the right to health,
which emanate from right to life as guaranteed by art.21 of the constitution and also violates
her liberty and happiness. The supreme court of India has said that the right to privacy is
implicit in art.21 of the constitution and a right to abortion can be read from this right.
Now when we look into the facts of the case, we can derive from the above-mentioned act
that now at this stage she cannot undergo abortion legally.

The question that crops up is that why she wants to undergo abortion even when the
expert committee has made it clear that there would be no risk to her and even her child
is capable of loving normally with the assistance of PACEMAKER? The doctor informed
appellant in the 20th week that there might be some problems or complications for the
appellant to conceive again and therefore, advised her to have an abortion immediately.

In the 22nd week she agreed to undergo abortion only because of the fact that she may have
problems in conceiving again in future and child will face some serious problems and his
quality of life would be poor. But the expert committee appointed by the Hon’ble Bombay
high court in its report made it clear that the said abnormality would not in any manner
whatsoever hamper or affect the appellant’s health or her ability to conceive in future and
recommended against abortion of the foetus at such an advanced state of pregnancy since the
child would be capable of leading a normal life with the assistance of an artificial pacemaker.

On this basis the Hon’ble court held that the case was not an exceptional one to consider the
compassionate plea of the appellant medical grounds. Now when there is no risk to life of the
appellant & child is running away from her responsibility. She doesn’t want a child who is
just less than perfect & thus wants that child to be killed. Earlier till 20th week she wanted
child, but after that she changed her mind only because she came to know about the problem
of the child.

I would like to highlight again the examples of Dr Stephen Hawking, the world-renowned
scientist who suffers from extremely debilitating motor neuron disease & Ludwig van
Beethoven, one of the greatest music composers of all times. If at that time, had there been
mechanisms to detect such disabilities in the foetus, these people may never have been born.
And in this case as already mentioned the child is capable of leading a normal life. Isn’t it
violating the provisions the provisions of Art.14 of the Constitution of India? Won’t it lead to
any Discrimination? The child has every right to live & we must consider the rights of the
unborn who are defenceless individuals incapable of taking decisions or making informed
choices about their right to life.
Art 14 bars discrimination & prohibits discriminatory laws. And decision in favour of
abortion will lead to discrimination to this child. Our law protects the rights of unborn child
& of disabled too. Like sec.20 of the Hindu Succession act, sec.13 & 20 Transfer of Property
Act, 1882 and sec. 6 of the Limitation Act, 1963 recognises the rights of a child in the womb.

The appeal of the appellant for the violation of her fundamental right of a person to life under
Art 21 is thus not justifiable. We can see here that it’s now illegal to allow her for abortion &
if it will be allowed then what about the right to life of that unborn baby? An unborn child
aged five months onwards in the mother’s womb till its birth can be treated as equal to 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. A person means a
human being regarded as an individual & an individual’s body: concealed on his person.
Therefore, human foetus to which personhood could be attributed must not be destroyed only
on this ground of abnormality; this child has every right to live & see the light of the day.
Thus, from the above facts we can derive that an unborn child is entitled to right to life. The
is no kind of violation to the rights of appellant but her wish to abort the baby will definitely
infringe the right of that unborn child to life.

Where a person entitled to institute a suit or make an application for execution of the decree is, at the time from
which the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within
the same period after the disability has ceased. Explanation to sec. 6 reads thus: “For the purpose of this section,
‘minor’ includes a child in the womb.”
 3. WHETHER IS THERE ANY NEED FOR THE RECOSIDERATION OF THE
CASE OF GIAN KAUR V. STATE OF PUNJAB?

It is humbly submitted before the Hon’ble Court that there is not at all any need to reconsider
the case of Gian Kaur v. State of Punjab, as the facts of this case of Gian Kaur is altogether
different & deals with suicide /abetment of suicide somewhere linked with right to life under
Art.21 the term life has a very expansive meaning & we cannot bring any relevancy from the
case of Gian Kaur by linking both cases, as this case is about abortion linked with right to
life.

In India, the sanctity of life has been Placed on the highest pedestal. “the right to life” under
Art. 21 of the judiciary and rightly so. This right is inalienable and is inherent in us. It
cannot and is not conferred upon us. This vital point seems to elude all those whom keep
on clamouring for the “Right to Die.”

The stance taken by the judiciary in this regard is unquestionable.

In Gian Kaur vs. State of Punjab, a five judge Constitutional bench held that that the “Right
to life” is inherently inconsistent with the “right to die” as is “death” with “life”. In
furtherance, the right to life, which includes right to live with human dignity, would mean the
existence of such a right up to the natural end of life. It may further include “death with
dignity” but such existence should not be confused with unnatural extinction of life curtailing
natural span of life. In progression of the above, the constitutionality of Section 309 of the
I.P.C, which makes “attempt to suicide” an offence, was upheld, overruling the judgement in
P. Rathinam’s case.

The factor of immense significance to be noted here is that suicide, euthanasia, mercy killing
and the like amount to unnatural ebbing of life. The decision thereby overruling P.
Rathinam’s case establishes that the “Right to life” not only precludes the “right to die” but
also the “right to kill.”

AIR 1996 SC 946.

P. Rathinam V. Union OF India, AIR 1994 SC 1844: (1944) 3 SCC 394.

Interestingly in P. Rathinam’s case, even When a Division bench affirmed the view in M.S
Dubal v. State of Maharashtra that the “right to life” provided by the Constitution may be
said to bring into its purview, the right not to live a forced life, the plea that euthanasia be
legalized was discarded. It was held that as euthanasia involve the intervention of a third
person, it would indirectly amount to a person, it would indirectly amount to a person aiding
or abetting the killing of another, which would be inviting section 306 of the I.P.C.

In NARESH MAROTRAO SAKHRE V. UNION OF INDIA. Lodha J. affirmed that

“Euthanasia or mercy killing is nothing but homicide whatever the circumstances in which it
is affected.”

The above inferences lead to one irresistible conclusion i.e. any form that involves unnatural
termination of life, whether an attempt to suicide, abetment to suicide/assisted suicide or
euthanasia, is illegal. The fact that even an attempt to suicide is punishable goes to show that
the extent of credibility accorded to the sanctity of life and the right to life as a whole. This
apart, the decriminalization of of euthanasia is unworkable in the Indian perspective, even on
humanitarian grounds, as it involves a third person. It is humbly submitted that the
implementation of the above mechanisms in India is utopian and thus the the two situations
incomparable.

Hon’ble High Court of Bombay placed its judgement based on the report of expert medical
committee who were against the abortion as there was no harm whatsoever to the the
appellant, also the child was capable of leadig a normal life with the assistance of artificial
pacemaker.

Thus , the appeal of abortion in this case is no where relevant as it will lead to violation of the
right of that unborn defenceless child who is very much capable of leading a normal life and
reconsidering the case of Gian Kaur would be mere waste of time of the court as there is no
point of linking both cases.

1987 Cri L J 743 (BOM)

If any person commits suicide, whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term which may extend to ten year,
and shall also be liable to fine. 995 Cri L J 96 (BOM).
 4. Whether the filing of special leave petition under article 136 of the constitution of
India justifiable?

It is humbly submitted before the Hon’ble Court that the filing of special leave petition under
Art 136 of Constitution of India is not justifiable.

Special leave petition means that you take special permission to be heard in appeal against
any High court/tribunal verdict. Usually any issue decided by the State High Court is
considered as final, but if there exist any constitutional issue decided or legal issue which can
only be clarified by the Supreme Court will grant to any individual if there exist an important
constitutional or legal issue involved in any case that was not properly interpreted by the
concerned High Court against whose judgement you approach the Highest court of the
country not otherwise.

In this case, Hon’ble High Court of Bombay dismissed the writ petition earlier on the ground
that the law of the land did not permit termination of pregnancy beyond the 20 weeks & also
remarked that, in view of the expert committee report, the case was not an exceptional one to
consider the compassionate plea of the appellant on medical grounds.

This case would have been exceptional if:

 It would have hampering the health of the appellant.

 There would have been some serious problems to the child.
 There would have been law for this & the Judgement of the court would have been
against it.
 Substantial and grave injustice has been done.

The Supreme Court has described the nature of its power under Art. 136 as follows:

“The exercise of jurisdiction conferred by Art. 136 of the constitution on this court is
discretionary. It does not confer a right to appeal on a party to litigation; it only confers a

Under Art. 136 the Supreme Court is authorized to grant in its discretion special leave to appeal from (a) any
judgement, decree, determination ,sentence, or order, (b) in any case or matter, (c) passed or made by any Court
or tribunal in the territory of India. The only exception to this Power of the Supreme Court is with regard to any
judgement, etc. of any court or tribunal constitutional by or under any law relating to the Armed Forces.
Discretionary power of widest amplitude on this Court to be exercised for satisfying the
demands of justice. On the one hand, it is an exceptional power to be exercised for satisfying
the demands of justice. On the one hand, it is an exceptional power to be exercised sparingly,
with caution and care to remedy extraordinary situations or situations occasioning gross
failure of injustice; on the other hand, it is an overriding power whereunder the court may
generously step in to impart justice and remedy injustice.”

The power has been held to be plenary, limitless, “adjunctive” and unassailable on the
grounds of unconstitutionality. A word of caution was sounded in M.C.Mehta v. Union of
India to the effect that judicial discretion has to be exercised in accordance with law and set
legal principles. That means it can go ultra vires.

The Supreme Court has observed in Pritam Singh v. The State, that the power under Art.
136 –

5. “is to be exercised sparingly and in exceptional case only, and as far as possible, a
more or less uniform standard should be adopted in granting special leave in the wide
range of matters which can come up before it under this Article,”

The Court has emphasized:

“The only uniform standard which in our opinion can be laid down in the circumstances is
that Court should grant special leave to appeal in those cases where special circumstances are
shown exist”

In conclusion, the Court has said:

“Generally speaking, this court will not grant special leave, unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has been
done and that the case in question presents features of sufficient gravity to warrant a review
of the decision appealed against.”
But here in this case,

I. It is neither hampering the health of the appellant nor will she face any problem in
conceiving in future.
II. Further child is also capable of living a normal life with the assistance of an artificial
pacemaker.
III. There is no law for termination of pregnancy beyond 20 weeks if it is not hampering
the health of the woman.
IV. There has not been any grave injustice done, the Hon’ble High Court of Bombay
observed that there is no risk to the life of appellant nor any serious problem to the
child so as to consider it as an exception case, and the expert committee also
recommended against the abortion at such an advanced stage as abortion may cause
risk to the life of appellant.

Thus, after going through the facts of this case we can see that it is not a special/
important/exceptional case which requires any sort of special attention. Thus the filing of
SLP under Art. 136 of the constitution of India is not justifiable.

(2004) 6 SCC 588, 613: AIR 2004 SC 4618

AIR 1950 SC 169: 1950 SCR 453.

 PRAYER FOR RELIEF

In the light of the facts stated, arguments advanced & authorities cited, the respondent,
humbly prays before the Honourable Court, to be graciously pleased to:

I. Quash the writs filed by the petitioner in the Hon’ble court of law since there is no
violation of the fundamental rights.
II. Maintain the status quo of the impugned Act since there is no violation of the
fundamental rights.
III. Pass any other order, which the court may deem fit in light of justice equity & good
conscience.

All of which is most humbly prayed

Counsel for the Respondent