2nd Internal Moot Round 2019

Before

THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION

OF INDIA

APPELLATE CRIMINAL JURISDICTION

SLP NO……………………………/2019

IN THE MATTER OF

NANDINI

V.

UNION OF INDIA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENT

By:- SOUMA RANJAN MUKHERJEE

5th B.A.LL.B

1 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

TABLE OF CONTENTS

1. Table of Contents …………………………….. Pg.2

2. Index of Authorities ………………………….. Pg.3
3. List of Abbreviation ………………………….. Pg.4
4. Statement of Jurisdiction …………………….. Pg.5
5. Statement of Facts ………………………….... Pg.6 - 7
6. Statement of Issues ………………………….. Pg.8
7. Summary of Arguments ……………………... Pg.9 -10
8. Arguments Advanced ……………………….. Pg.11 - 18
9. Prayer ……………………………………....... Pg.19

2 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

INDEX OF AUTHORITIES
CASES CITED

1. State Bank Of India v. S.B.I. Employees’ Union of India, AIR 1987 SC 2203
2. A.V.Papayya V Govt. of A.P (2007)4SCC 221
3. Narpat Singh v. Jaipur Development Authority (2002) 4 SCC 666
4. Durga Shankar v. Raghu Raj AIR 1954 SC 520 : (1955) 1 SCR 267
5. Pritam Singh v. The State AIR 1950 SC 169
6. M.H.Hoskot v. State of Maharashtra (1978)3 SCC 544; AIR 1978 SC 548
7. Rohini Prasad v. Kastuchand (2000)3 SCC 668; AIR 2000 SC 1283
8. Thaera Khatoon v. S. Mohammed (1992) SCC 635
9. Roe v. Wade 410 US 113 (1973)
10. Oriental Insurance Co. Ltd. Vs. Santhilal Patal 2007(4) ACD 835
11. Heller vs. DOE (509) US 312

BOOKS REFERRED
1. M.P. Jain Indian Constitutional Law 6th and 7th edition
2. H.M. Serevai Contitution Of India
3. P.M. Bakshi Commentry on The Constitution Of India

REPORTS REFERRED
1. Government of India Planning Commission (Educational Division) 2002

LEGAL DATABASE
1. www.Manupatra.com
2. www.legalservicesindia.com
3. www.casemine.com

3 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

List of Abbreviations

 AIR : All India Reporter

 SC : Supreme Court
 SCC : Supreme Court Cases
 C.J. : Chief Justice
 C.J.I : Chief Justice of India
 Ors. : Others
 V. : Versus
 SCR : Supreme Court Reporter
 Hon’ble : Honorable
 Art. : Article
 UOI : Union Of India
 UN : United Nation
 IPC : Indian Penal Code
 MTPA : Medical Termination of Pregnancy
Act

4 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

STATEMENT OF JURISDICTION
The Respondent Has The Honor To Address The Said Petition Before The Hon’ble
Supreme Court of India, Under Article 136 (Special Leave Petition) of the
Constitution OF India.

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in the
territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law relating
to the Armed Forces

In the present petition the Respondent has set forth Facts, Issues and Arguments In the
present case.

5 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

Statement of Facts
1. Facts:

 Nandini went for her regular check-up in the 22nd week of her
pregnancy. The doctor told her that there was a fair chance of the child
being born with a congenital handicap and would need a pacemaker, he
also explained that the baby may not be leading a normal life.
 She sought a second opinion of the board of directors of a
recognized government hospital. The board confirmed the finding of a
gynaecologist but refused to perform abortion saying that abortion was
not permitted beyond the 20th week of pregnancy except when the life
of the mother was in danger.

2. Proceedings of the Court:

 She approached the High Court for permission but High Court
refused her permission on the ground that there was no scope for
exercising its discretion.
 The provison of the Indian Penal Code read with the provisions in
the Medical Termination of Pregnancy Act (MTPA) make it very clear
that abortion, except in the circumstances contained in the MTPA,
continues to be an offence.
 Her SLP to the SC has been admitted and the case has been listed
for early hearing in view of her advanced stage of pregnancy and the
need for a quick disposal of her petition.

3. Contentions of the Appellant:

 Nandini has submitted that the provision in the IPC and the
MTPA violate her Fundamental Right to life. Every woman has an
absolute right over her body and is entitled to decide to terminate
pregnancy at any stage before birth.
 In the alternative, she has argued that prohibition to abort a
foetus with disability this beyond the period described in the MTP
Act violated the right of unborn child to live with dignity.
 She contends that while the PNDT Act has specifically
prohibited sex- selective abortion, Parliament in its wisdom has not
prohibited use of diagnostic techniques to discover foetal disabilities

6 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

the purpose of the diagnostic test to discover foetal disabilities will

be frustrated if it is not permitted to be aborted. Especially when in
cases in which disability is discovered only at an advanced stage of
pregnancy it should be permitted on the test of the feasibility of light
with dignity and not on the basis of the period of pregnancy or
viability of life outside the womb.
 Given her middle class background, replacing a pacemaker
every 5 years will put an un dischargeable burden on her, affecting
her as well as the child’s quality of normal life.

4. Final Part:

 Hence, she should be permitted to abort the foetus even at the

late stage of pregnancy. She also seeks a declaration that the
provisions in the IPC and thr MTPA are unconstitutional being
violate of her right to life as well as the right to unborn to a life with
dignity.
 The Union of India is defending the provision of ther IPC and the
MTPA on the ground the decision to the women’s right to her body or
to the life of an unborn involved moral judgement and Parliament
alone is entitled to take that decision on behalf of the people of India
and SC is not the right forum to decide the issue.
 Abortion in India is an exception rather than the rule. Women
cannot seek an absolute right without restrictions or regulations which
may result in loss of life of another. The MTPA has not granted a
right of abortion, but only a permission to abort in the limited
circumstances specified in the Act.
 It further argues that allowing abortion on the grounds of political
disability will be contrary to the UN Convention on the Rights of the
persons with Disability, 2006 on 1st October 2007 which came into
force in 2008 and has been ratified by India.

7 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

Statement of Issues

1) Whether the present petition under Article 136 is maintainable before the
HON’BLE Supreme Court?
2) Whether section 312 to 318 of Indian Penal Code and section 3 of Medical
Termination of Pregnancy Act is in violation of Article 21 of the Constitution
of India?
3) Whether the abortion on the ground of potential disability will be contrary to
the UN convention on the Rights of a person with disability, 2006?

8 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

Summary of Arguments

1) Whether the present petition under Article 136 is maintainable before the
HON’BLE Supreme Court?
The present petition is not maintainable before the Hon’ble Supreme Court,
even though a vide amplitude of power has been conferred upon the Supreme
Court under Article 136 of the constitution, it can only be exercised in case of
grave miscarriage of justice has been done by the lower court or in case of any
extraordinary circumstance. In the present case neither there has been any
miscarriage of justice nor has any extraordinary circumstance has arisen for
the particular petition to be maintainable before the Hon’ble Supreme Court.
Thus it can be clearly understood the present is not maintainable before the
Hon’ble Supreme Court of India.

2) Whether section 312 to 318 of Indian Penal Code and section 3 of Medical
Termination of Pregnancy Act is in violation of Article 21 of the Constitution
of India?
Section 312 – 318 of IPC and Section 3 of the MTPA does not violate the
fundamental right conferred upon us under article 21 of the constitution as
both of these acts have been enacted by the legislature to protect the interest of
the unborn person as well as the mother. Thus these particular sections are not
ultra-vires to the constitution of India.

3) Whether the abortion on the ground of potential disability will be contrary to

the UN convention on the Rights of a person with disability, 2006?
Abortion on the ground of Potential disability is contrary to the UN
convention on the Rights of a person with disability, 2006. As this convention
tells us about how to empower disabled people and to make sure that they are
able to live their life like any normal person, without being devoid of any
human rights and personal liberties and India being a signatory of this
convention has made great efforts to help disabled people live a normal life by
introducing various schemes to help the disabled people as well as their

9 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

family. Thus aborting a child due to possible disability is contrary to the UN

convention.

10 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

Arguments Advanced

1) Whether the present petition under Article 136 is maintainable before the
HON’BLE Supreme Court?

Article 136 states that “Over and above the constitutional provisions mentioned above
regulating the Supreme Court’s appellate jurisdiction, Art. 136(1) empowers the
Supreme Court to grant, in its discretion, special leave to appeal from any judgment,
decree, determination, sentence, or order in any cause or matter passed or made by
any court or tribunal in the territory of India”.1

As stated in the case of A.V.Papayya V Govt. of A.P2 “Article 136 does not confer the
right to appeal on any party. It confers discretion on the apex court to grant leave in
appropriate cases. In other words, the Constitution has not made the Supreme Court a
regular court of appeal or court of error.”

Article 136 has been described by Supreme Court in the case of Narpat Singh v.
Jaipur Development Authority3 as the following “ 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 discretionary power
of widest amplitude on this court to be exercised for satisfying the demands of justice.
On the one hand, it is exceptional power to be sparingly, with caution and care and to
remedy extraordinary situations or situations occasioning for gross failure of justice;
on the other hand, it is an overriding power where under the court may generously
step in to impart justice and remedy injustice”

In the case of Durga Shankar v. Raghu Raj Supreme Court has commented on the
plenitude of its power under Art. 136 “The powers given by Article 136 of the
Constitution however are in the nature of special or residuary powers which are
exercisable outside the purview of ordinary law, in cases where the needs of justice
demand interference by the Supreme Court of the land. The Article itself is worded in
the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the

1
State Bank Of India v. S.B.I. Employees’ Union of India, AIR 1987 SC 2203
2
(2007)4SCC 221
3
(2002) 4 SCC 666

11 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

matter of entertaining and hearing appeals, by granting of special leave, against any
kind of judgment or order made by a Court or Tribunal in any cause or matter and the
powers could be exercised in spite of the specific provisions for appeal contained in
the Constitution or other laws. The constitution for the best of the reasons did not
choose to fetter or circumscribe the powers exercisable under the Article in any
way”.4

The present petition filed before the Hon’ble Supreme Court under Special Leave is
not maintainable as given the wide scope of powers to the Supreme Court to hear
appeal under this article it has to be careful while exercising such powers. In the case
of Pritam Singh v. The State it has been observed as follows “On a careful
examination of article 136 along with the preceding article, it seems clear that the
wide discretionary power with which this Court is invested under it is to be exercised
sparingly and in exceptional cases on 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. By virtue of this article, we can grant
special leave in civil cases, in criminal cases, in income-tax cases, in cases which
come up before different kinds of tribunals and in a variety of other cases. The only
uniform standard which in our opinion can be laid down in the circumstances is that
Court should grant special leave to appeal only in those cases where special
circumstances are shown to exist.”5

A question of law will be a substantial of law if it directly and substantially affects the
rights of the parties. In order to be "substantial" it must be such that there may be
some doubt or difference of opinion or there is room for difference of opinion. In the
authority cited in M.H.Hoskot v. State of Maharashtra, “states that unless a question
of law of general importance is invoked or the decision shakes the conscience of the
court, the Supreme Court ordinarily would not grant special leave”6. “Merely because
a different view is possible and that on the ground the decision of the High Court is
erroneous, should not be a ground to interfere.”7

4
AIR 1954 SC 520 : (1955) 1 SCR 267
5
AIR 1950 SC 169
6
(1978)3 SCC 544; AIR 1978 SC 548
7
Rohini Prasad v. Kastuchand (2000)3 SCC 668; AIR 2000 SC 1283

12 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

“Even after admission of special leave petition (SLP), appellant to show exceptional
and special circumstances to justify court’s interference.”8

In the present case it can be clearly seen that no such special circumstances is present
nor has there been any gross miscarriage of justice for the parties to seeking remedy
under Art. 136, thus the petition cannot be said to be maintainable before the Hon’ble
Court of law.

2) Whether section 312 to 318 of Indian Penal Code and section 3 of Medical
Termination of Pregnancy Act is in violation of Article 21 of the Constitution
of India?

In the present case at hand, the counsel on behalf of the respondent, would like to
submit that section 312 – 318 of Indian Penal Code (Hereinafter to be referred as IPC)
and section 3 of Medical Termination of Pregnancy Act (Hereinafter to be referred as
MTPA) does not violate article 21 of the Indian Constitution.

It has been clearly established by law that “a person cannot claim any right while
infringing on the right of another”. In the present case the petitioner has already
completed 20 weeks of pregnancy, which is the stipulated time period for aborting
any child under the “MTPA”. It has been held that “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.”

Section 312 to 318 of the IPC talks about miscarriage, injuries to the unborn child, the
basic objective of the legislature while drafting the provisions of IPC was to protect
people (unborn child) from crimes that can be committed against them, legislature
while enacting any law must keep in consideration that the fundamental rights of the
people are not infringed.

In the present scenario it can be clearly seen that though there was a good chance of
the child being born as a handicapped person, it cannot be always assumed that such
shall be the case. India though a developing nation is not medically so advanced that
the disability of a child can be detected when the child is still in the womb of the

8
Thaera Khatoon v. S. Mohammed (1992) SCC 635

13 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

mother. Every person has a right to life provided to him by the constitution of nation,
and it would unjust to take it away based on mere suspicion or speculation. Children
are the future of the country and they need to be protected by their parents, article 21
protects the right to life and personal liberty and if in the present case petitioner is
allowed to abort the child, then we will be depriving the unborn child of his
fundamental right to life.

The provisions of IPC were enacted to put a stop on female feticide or illegal abortion
that was existing thus can be said to be complacent with article 21.

Section 3 of MTPA states that when pregnancy can be by registered medical

practitioners various circumstances have been provided under which any women can
abort her child under normal circumstances a women can abort her child by
consulting a registered medical practitioner within 12 weeks of her pregnancy or at
the most within 20 weeks of her pregnancy with the consultation 2 medical
practitioners. In special circumstances where the health of the mother is in danger or
the child may have some serious handicap only in such situations can a women be
allowed to abort her child under the said act.

In the present scenario the petitioner who is 22 weeks into her pregnancy was
informed by her doctor that the child to be born may have some disability and needs
to use a pace maker to sustain his life, it can be clearly understood that the report of
the doctor was based on mere speculation on a yet to be fully developed foetus.

The main intention of the legislature while enacting the particular law needs to be
considered while interpreting the law, just because a law is not to the liking of any
person it cannot be called to be ultra-vires of the constitution, any law when made is
made for the welfare the people There is of a course a cogent rationale for the
provision of this upper limit of 20 weeks (of the gestation period) within which the
termination of a pregnancy is allowed. This is so because there is a clear medical
consensus that an abortion performed during the later stages of a pregnancy is very
likely to cause harm to the physical health of the woman who undergoes the same.

14 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

This rationale was also noted in a prominent decision of the United States Supreme
Court in Roe v. Wade9 and

In the case of Oriental Insurance Co. Ltd. Vs. Santhilal Patal Court held the
following “The accident resulted in the death of a women and ten month old foetus.
The Andhra Pradesh High Court held that an unborn child aged five months onwards
in the mother’s womb till its birth can be treated as 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.10” We can clearly understand by the
judgment above mentioned that the meaning of a living person is of a very wide
notion and even foetus can be categorized as a living person, even many of our
statutes consider foetus as living person such as Transfer of Property Act, Hindu
Succession Act to name a few.

The main intention while enacting section 3 of the MTPA was to preserve the life of
both mother and child and only in exceptional cases can a person seek remedy from
the statue and not just anyone can use this particular statue as an alternative to abort
their children.

Article 21 guarantees us the fundamental right to life and personal liberty and that in
no circumstances can it be taken away from us, this particular fundamental right is of
a very wide notion and includes not only life but ample of other stuff, one of which is
right to health. If a women is allowed to abort a child after 20 weeks it can adversely
affect her health and thus the bar on the time period of abortion.

Section 3 merely complies with the provision of article 21 of the constitution as it was
stated by “Mr. Justice Kennedy” speaking for the U.S. Supreme Court observed: - the State
has a legitimate interest under its parens patriae powers in providing care to its citizens who
are unable to care for themselves11”. which states that the state shall in all situations
protect its subject as a parent protects its child. The clear intention of the legislature
was to protect the health of the mother by not letting her abort after 20 weeks unless
there exists some exceptional circumstances where even past 20 weeks women are

9
410 US 113 (1973)
10
2007(4) ACD 835
11
Heller vs. DOE (509) US 312

15 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

allowed to abort their child. Furthermore a child who has been conceived is to be
considered as living being and aborting a foetus after 20 will be depriving him of his
life that has been guaranteed to him under art. 21.

It can thus be understood with above mentioned arguments that the provisions of IPC
and MTPA do not violate Article 21 of the Constitution.

16 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

3) Whether the abortion on the ground of potential disability will be contrary to

the UN convention on the Rights of a person with disability, 2006?

Abortion on the ground of potential disability is in contravention to the United Nation

convention on the Rights of Person with Disability.

Article 7 of the convention talks about “Children with Disability” the following
provisions are mentioned under the convention they are:-

1) State Parties shall take all necessary measures to ensure the full enjoyment by
children with disabilities of “Human Rights” and “Fundamental Freedom”
on an equal basis with other children.
2) In all action concerning children with disabilities, the best of the child shall be
a primary consideration.
3) States Parties shall ensure that children with disabilities have the right to
express their views freely on all matters affecting them, their view being given
due weight in accordance with their age and maturity, on equal basis with
other children, and to be provided with disability and age-appropriate
assistance to realize that right.

These are the primary contentions put forward by the UN in their convention for
the rights of disabled people; the primary motive of this article is to make sure that
the disabled children can lead a life similar to that of any normal and healthy
child. The basic intent of the UN was to make sure that no disabled child feels that
they do not have the basic human rights that are guaranteed to all the people of the
nation.

In the present matter abortion on the ground of potential disability actually

violates the UN convention of 2006. India being a signatory nation of the
convention has made many government aided schemes to help out the families of
the disables wherein they are provided with financial help or are provided with
PCO or STD booths, they are even employed in government services under the
plans made by the government. “THE PERSONS WITH DISABILITY ACT”
of 1995 has been enacted by the legislature to protect the interest of disabled
people in the country.

17 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

In the present matter the petitioner claimed that she being from a middle class
family cannot afford to get the pacemaker replaced every 5 years as it would put a
huge financial burden on her family. “The Ministry of Social Justice and
Empowerment aims at helping the disabled persons by bringing suitable, durable
standard aids and appliances through their scheme of “Assistance to Disabled
Persons For Purchase of Aids & Appliances or more commonly known as the
ADIP program, this program helps by providing financial assistance for purchase,
fabrication and distribution of “Aids and Appliance”.”12

Aborting a child merely on probability that the child may be deformed will cause
gross injustice to the child as it is also possible that the child may grow up to be
healthy person without any suffering from any defects or his/her defects can be
cured at a later stage of his life. Thus in case of an abortion the child is being
devoid of his life and the future possibility that may come up his way if he was
alive.

It can be clearly understood with the argument raised above that abortion in case
of potential disability is in contravention of the UN convention Rights of Person
with Disability.

12
Government of India Planning Commission (Educational Division) 2002

18 MEMORANDUM ON BEHALF OF THE RESPONDENT

 2nd Internal Moot Round 2019

Prayer

Wherefore in the lights of issues raised, arguments advanced and authorities cited, it
is most humbly prayed before this Hon’ble Court:

To dismiss the present petition.

To hold the Medical Termination Of Pregnancy Act and Sec 312 IPC
constitutional.
To hold that abortion on the ground on potential disability is in
contravention of the UN convention on the Rights of a person with
disability, 2006

Pass any such order, writ or direction as this Hon’ble Court may deem fit and proper
in the interest of justice. For this Act of kindness, the Respondent shall be duty bound
and forever pray.

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED

COUNSEL ON BEHALF OF THE RESPONDENT

19 MEMORANDUM ON BEHALF OF THE RESPONDENT