Bishop Cotton Womens Christian Law Colle

TEAM CODE – 04-P
BISHOP COTTON WOMEN’S CHRISTIAN LAW COLLEGE
6TH NATIONAL MOOT COURT COMPETITION 2017
BEFORE THE HONOURABLE SUPREME COURT OF VINDHYA
WRIT PETITION
[Under ARTICLE 32 OF THE CONSTITUTION OF VINDHYA]
PUBLIC INTEREST LITIGATION No. _____/2017
WRIT PETITION NO. of 2017
Mr. Ananda Anantam Raju & Smt. Rashmi Jacob ….Petitioner
Vs.
The Union of Vindhya …. Respondent
AGAINST THE IMPUGNED PROVISIONS OF THE POPULATION CONTROL

(POPULATION CONTROL ACT, 2017)
TO
The Hon’ble Chief Justice of Vindhya and the Hon’ble Companion Justices of the Supreme
Court of Vindhya.
MEMORANDUM ON BEHALF OF THE PETITIONER
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TABLE OF CONTENTS
Table of Cases……………………………………………………………………. 3
List of Abbreviations……………………………………………………………. 5
Index of Authorities……………………………………………………………… 7
Statement of Jurisdiction………………………………………………………… 9
Statement of Facts……………………………………………………………….. 10
Statement of Issues ……………………………………………………………… 12
Summary of Arguments…………………………………………………………..13
Arguments Advanced…………………………………………………………….. 15
Prayer…………………………………………………………………………… 32
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TABLE OF CASES
S.No Case name Citation

1. Ashutosh Gupta v State of Rajasthan (2002) 4 scc 34
2. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161 : 1984 SCC
(L&S) 389
3. Bugdaycay Case At 531 E-G
4. Devika biswas v Union of India. 2016) 10 scc 726
5. Eistenstadt V Baird 405 U.S. 438 (1972)
6. Emperor Vs. Jeshingbhai Ishwarlal Dhobi AIR 1950 Bom 363
7. Francis Coralie Mullin v. Administrator, Union (1981) 1 SCC 608 : 1981

Territory of Delhi, SCC (Cri)
8. HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120
9. K.K. Kouchunni V. State of Madras AIR 1959 SC 725
10. Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225
11. Kharak Singh v. State of U.P (1964) 1 SCR 232
12. M.G.Badappanavar v. State of Karnataka (2001) 2 SCC 666
13. Munn v. Illinois (1877) 94 US 113 : 24 L Ed

77
14. Murlidhar Agarwal Vs. State of U.P (1974)2 SCC 472)
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15. Nirmal Mittal v state of Haryana (1993) 3 SLR 69 (P&H)
16. Paschim Banga Khet Mazdoor Samity v. State of (1996) 4 SCC 37

W.B.,
17. Paton v. United Kingdom 3 EHRR 408 1980
18. Roe v. Wade 410 U.S. 113 (1973)
19. Roop Chand v. State of Punjab AIR 1963 SC 1503
20. Secretary, H.S.E.B. v. Suresh AIR 1999 SC 1160: (1999)3

SCC 601
21. State of Bihar V. Kameshwar Singh AIR 1952 SC 252
22. State of Bombay V. United motors Ltd. AIR 1953 SC 252
23. State of Orissa v. Dhirendra Nath Das AIR 1961 SC 1715
24. State of west bengal V. Union of India AIR 1996 Cal 181 at 218
25. Suchitha Srivastava &Anr. V Chandigarh AIR2010SC235

Administration
26. Bruggemann & Scheuten v. Federal republic of (1981) 3 EHRR 244

germany
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LIST OF ABBREVIATIONS
S.NO ABBREVIATIONS EXPANSION

1. & And
2. AIR All India Reporter
3. Cr LJ Criminal Law Journal
4. Cr.P.C Criminal procedure code
5. Doc Document
6. Govt. General Assembly
7. Hon’ble Honorable
8. i.e That is
9. Ltd. Limited
10. No. Number
11. p. Page
12. Resl. Resolution
13. Rep. Reporter
14. Rev. Review
15. SCC Supreme Court Cases
16. Supp. Supplement/Supplementary
17. v. Versus
18. Vol. Volume
19. Art. Article
20. Co. Company
21. Anr. Another
22. Edn. Edition
23. Ors. Others
24. SC Supreme Court
25. SCALE Supreme Court Almanac
26. Sec. Section
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27. EHRR European Human Rights Report

28. US United States
30. UK United kingdom
31. / OR
32. SCR Supreme Court Reporter
33. TN Tamil Nadu
34. A.P. Andhra Pradesh
35. Guj Gujarat
36. Bom. Bombay
37. W.B West Bengal
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INDEX OF AUTHORITIES
A. LIST OF BOOKS REFERRED TO (BIBLIOGRAPHY):

1. MAMTA RAO, constitution law, EASTERN BOOK COMPANY.
2. P. N. BAKSHI, The Constitution of India, (Ninth Edition, Law Publishers Pvt Ltd, Allahabad,
2011)
3. D.D. BASU, Commentary On The Constitution Of India, Wadhwa, India, (8th Edition,
Volume I And II, 2007)
4. D.D. BASU, Constitution Of India, Lexis Nexis, India, (8th Edition, 2009)
5. D.D. BASU, Shorter Constitution Of India, Lexis Nexis, India, (14th Edition 2009)
6. D.D. BASU, Human Rights In Constitutional Law, Lexis Nexis, India, (3rd Edition 2008)
7. M.P. JAIN, India Constitutional Law, Lexis Nexis, India
8. KAZGI, Constitution Of India, India Law House, India, (6th Edition 2004)
9. H.M.SEERVAI, constitutional law of India , volume (3), 4th edition.
10.S.P.SATHE , Administrative law, 7th edition 2004.
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B. LIST OF LEGISLATIONS REFERRED TO:

The Constitution of India, 1950
Haryana panchayati raj act 1994
Population policy act ,2000
C. LIST OF CONVENTIONS REFERRED TO:
European human rights report
on Reproductive Rights
D. LIST OF WEBSITES REFERRED TO (WEBLIOGRAPHY):

noon.com
www.scconline.com
indu.com
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STATEMENT OF JURISDICTION
IN THE MATTER OF MR. ANANDA ANANTAM RAJU & SMT. RASHMI JACOB Vs.
STATE OF VINDHYA :
The petitioner has approached this Hon’ble Supreme Court of Vindhya in invoking the
jurisdiction of this Hon’ble Court made under Article 32 of the Constitution of Vindhya upon
being aggrieved by: the violation of Fundamental Rights enshrined under Part III of the
Constitution by allowing Population Control Act, 2017. The petitioner has approached this
Hon’ble court in apprehension of the violation of rights that inevitably occur should the
implementation of the policy of the government not be stopped. Therefore, the petitioner
maintains that the jurisdiction of art 32 of the constitution, which protects the citizens of Vindhya
from any violation of their fundamental rights, is applicable in the present case. So, the Hon’ble
Supreme Court is vested with jurisdiction to hear the present petition under Article 32 of the
Constitution of Vindhya.
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STATEMENT OF FACTS
 Population explosion in any state is multifaceted issue and in a pluralistic society like
Vindhya it espouses diverse challenges concerning the use of natural resources, creation
of equal opportunities to all in education, employment, food, water and clean
environment.
 The government of Vindhya has passed a legislation keeping in mind the population
explosion in the state of Vindhya to make people settle for small family norm and to
enable proper use of resources and proper upbringing of the children. The government
enacted a law titled “population control act, 2017”to tackle growing socio-economic
problem and to control population.
 Appropriate government (state and central) is delegated with power to take necessary
steps to encourage, promote the couple to opt for small family norm to have control over
the population.
 The married couple either the husband or the wife who have two children on the date of
commencement of this act, voluntarily undergoes sterilization, the appropriate
government shall provide benefits like free education & employment to one child,
dwelling units at concessional rates. Obligates the central government to set up health
care center in every village and district to create awareness about population control
among masses and to provide assistance to people.
 The person who is serving in any organization under the control of union and state
government is unmarried and has not procreated any child on the date of the
commencement of this act, shall give an undertaking that he/she shall not procreate more
than two living children. Contravention of the conditions will to lead to disciplinary
action: debarred from availing the public utility system, shall not be given free medical
facilities through government hospitals and disqualified from contesting elections or
being a member of legislature, not entitled for increment and promotion.
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 The appropriate government shall provide a married couple who opts for one child norm
by sterilization, the following benefits: technical education to child at free of cost, one
time out of turn promotion, cash reward of seventy five thousand, cash reward of not less
than ONE LAKH rupees in fixed deposit for girl child, employment to child and two
advance increments to government servants. The minimum age for entering into marriage
for male is not less than twenty-seven years of age and for female is not less than twenty-
two years of age.
 Any person who contravenes with the age restriction for marriage shall be punished with
imprisonment for a term of five years and a fine of twenty thousand rupees. The
appropriate government shall introduce population control as a compulsory subject in all
the educational institution for all children of fifteen years, irrespective of the class and
course.
 Any married couple who procreates more than three children, shall be punished with
imprisonment for a term of one year or fine which extend to twenty-five thousand rupees
or both. The appropriate government has the authorization to make rules for
implementation of this act. This act has received a mixed bag of appreciation and
criticisms by the policy makers, media persons, NGO’s, civil societies and common
persons.
 The couple Mr.Ananda Anantam raju and Smt. Rashmi Jacob both employees of the
union government had married 12 years ago and opted for a small family norm .The
couple chosen not to subject themselves for sterilization process .The act coming into
force, some of their relatives and colleagues had availed the benefits under the act by
sterilization .The couple felt this legislative measure amounts to interference in freedom
and fundamental rights, rights of procreation, life &equality.
 The aggrieved couple challenged the constitutionality of the said act by filing a writ
petition u/Art.32
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ISSUES RAISED
ISSUE 1 : WHETHER THE WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF VINDHYA IS MAINTAINABLE OR NOT ?
ISSUE 2 : WHETHER ARTICLE 14 UNDER CONSTITUTION OF VINDHYA IS

VIOLATED OR NOT?
ISSUE 3 : WHETHER ARTICLE 21 UNDER CONSTITUTION OF VINDHYA IS

VIOLATED OR NOT?
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SUMMARY OF ARGUMENTS
1. WHETHER THE WRIT PETITION IS MAINTANABLE OR NOT UNDER

ARTICLE 32 OF THE CONSTITUTION OF VINDHYA ?
The counsel humbly submits that the writ petition is maintainable under Art. 32 of the
constitution of Vindhya. The Public Interest Litigation under Art. 32 can be invoked
when there is an infringement of fundamental right. Art. 32 is an important and integral
part of the Vindhya Constitution. Also, Art. 32 is the provision that every citizen uses as a
mode to approach the S.C. for relief and remedy. The PIL is filed for the benefit of the
public when the fundamental right is violated. The issue between the couple and the
government for the benefits availed by the government for sterilization cannot be
considered as a family matter. Right of life and liberty is governed under Art. 21. Right of
freedom and fundamental rights is governed under article14.This PIL is filed for the
welfare of the people . Therefore the PIL is maintainable.
2. WHETHER ARTICLE 14 UNDER CONSTITUTION OF VINDHYA IS

VIOLATED OR NOT ?
The equality clause under Art.14 of the constitution does not speak of mere formal
equality before law but embodies the real concept of real and substantive equality, strikes
at these inequalities.1 In the present case the petitioners feel that the act is violating article
14. The Constitution in which it was inter alia provided that “no person who has more
than two children and has not got himself or herself or his or her spouse sterilized or who,
having not more than two children does not give an undertaking not to have more than
two children” shall be liable to removal from service. “Government employees who
undergo sterilization after having two or three surviving children may be granted a
1
Secretary, H.S.E.B. v. Suresh AIR 1999 SC 1160: (1999)3 SCC 601
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special increment in the form of personal pay not to be absorbed in future increases in
pay either in the same post or on promotion to higher posts. The rate of personal pay
would be equal to the amount of the next increment at the time of the grant of the next
increment due at the time of the grant of the concession and will remain fixed during the
entire service”. There is no reasonable classification in the act passed by the policy of the
government.
3. WHETHER ARTICLE 21 UNDER CONSTITUTION OF VINDHYA IS

VIOLATED OR NOT ?
Human right to live with dignity as a human being in the society and protected as a
fundamental right under Article 21 of the Constitution of India with reasonable
restrictions as contemplated under the Act. Human rights are natural rights and thus a
woman has a natural right in relation to her body which includes her willingness to be
a mother or her unwillingness to be a mother. Article 21 recognized that a person has
complete rights of control over his body organs and his ‘person’. Thus Right to
procreation and to have control over one's reproductive organs. The right to your body
lies with you and no one else. Any forced act upon your body without your consent is a
violation of basic human rights.
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ARGUMENTS ADVANCED
1. WHETHER THE WRIT PETITION IS MAINTAINABLE UNDER ART.32 OF

CONSTITUTION OF VINDYA?
The petition has been filed in public interest and therefore maintainable as Public Interest
Litigation :
It is the humble contention of the council that the writ petition under Art. 32 is maintainable in
this Hon’ble court to invoke the writ jurisdiction of the SC is not necessary that the fundamental
right must have been actually infringed- a threat to the same would be sufficient2. Applying the
doctrine of ‘reasonable apprehension’, this Hon’ble Court may interfere directly in the said case.
The most fundamental right of an individual is his right to life; if an administrative decision may
put his life at risk, the basis for the decision surely calls for the most anxious scrutiny according
to the principle of ‘anxious scrutiny’ 3.Thus the petitioned filed before this apex court is
maintainable.
Right from the decision in the case of S.P. Gupta V. Union of India4, reported in, the Supreme
Court has held that it may now be taken as well established principle that where a legal wrong or
a legal injury is caused to a person or to determinate class of persons by reason of violation of
any constitutional or legal right or any burden as reason of violation of any constitutional or legal
provisions or without authority of law or any such legal wrong or legal injury or legal burden is
threatened and such person or determinate class of persons by reason of poverty, helplessness of
disability or socially or economically disadvantaged position, unable to approach the court for
relief, any member of the public can maintain an application for an appropriate direction, order
2
Roop Chand v. State of Punjab, AIR 1963 SC 1503
3
Bugdaycay [1987] AC 514, where Lord Bridge said at 531E-G
4
(1981) supp SCC 87
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or Writ in the High Court under Article 226 of the Constitution of India. This principle had
continued till date and in fact is the origin of Public Interest Litigation. The ingredients of Public
Interest Litigation like locus standi to any member of the public, relief against public wrong or
public injury, dominant object being public interest or public good and besides that it should also
satisfy essentials of a public interest litigation which would justify judicial interference or
intervention..
In judicial process regulated by the Constitution, many larger disputes or issues demand judicial
intervention and the rule of law requires to ensure that all persons are able to live securely under
the rule of law, to promote within the proper limits of the judicial functions and observance and
attainment of human rights and administer the law impartially amongst the persons and between
persons and the State.5
The expression 'public interest' means act beneficial to general public. It means action
necessarily taken for public purpose. There is thus much in common between public interest and
public purpose. The expression public purpose is not capable of precise definition and has not a
rigid meaning. It can only be defined by a process of judicial inclusion and exclusion was held in
State of Bihar V. Kameshwar Singh.6However, a broad test has been formulated and it is that
whatever furthers the general interest of the community, as opposed to the particular interest of
the individuals, must be regarded as a public purpose". The expression interest of the general
public embraces public security, public order and public morality, was held in Emperor V.
Jeshingbhai Ishwarlal Dhobi.7 It will not be out of place to mention here something about
public policy. Public policy is a principle of judicial legislation or interpretation founded on the
current needs of the community. The interest of the whole public must be taken into account was
5
“Nature of Judicial Process” [(2002)6 SCC (J) 1])
6
AIR 1952 SC 252
7
AIR 1950 Bom 363
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stated in Murlidhar Agarwal Vs. State of U.P.8 Public Interest Litigation is a strategic arm of
the legal aid movement which intended to bring justice. Rule of law does not mean that the
protection of the law must be available only to a fortunate few or that the law should be allowed
to be abused and misused by the vested interest. There is no reason why the Court should not
adopt activist approach similar to Court in America, so as to provide remedial amplitude to the
citizens of India. The petitioners have filed this petition without any malicious intent or to avail
any privileges for their own, they have only filed the petition on behalf of the public. Since they
have already adapted the small family norm they do not have anything to lose or to gain.
Supreme Court has now realized its proper role in welfare state and it is using its new strategy
for the development of a whole new corpus of law for effective and purposeful implementation
of Public Interest Litigation. One can simply approach to the court for the enforcement of
fundamental rights by writing a letter or post card to any Judge. That particular letters based on
true facts and concept will be converted to writ petition. When Court welcome Public Interest
Litigation, its attempt is to endure observance of social and economic programs frame for the
benefits of have-nots and the handicapped. Supreme Court's pivotal role in expanding the scope
of Public Interest Litigation as a counter balance to the lethargy and inefficiency of the executive
is commendable was held in State of west Bengal V. Union of India.9
Right of Locus Standi :
The orthodox view of Locus Standi has been modified and the class of persons entitled to
enforce Fundamental Rights has been widened by the doctrine of “ Public Interest Litigation ”
according to which any public minded individual is allowed to invoke Fundamental Rights under
Art. 32 & 226.No prejudice need to be proved for enforcing the fundamental rights.
Alternative Remedy Not A Bar :
8
(1974)2 SCC 472)
9
AIR 1996 Cal 181 at 218
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Where there is well-founded allegation that fundamental right has been infringed alternative
remedy is no bar for entertaining writ petition and granting relief.10 The mere existence of an
adequate alternative legal remedy cannot be per se a good and sufficient ground for throwing out
a petition under Art. 32 if the existence of a fundamental right and a breach, actual or threatened,
of such right and is alleged is prima facie established on the petition.11 In spite of availability of
the alternative remedy, the court may exercise its writ jurisdiction in at least petitions where the
petitioner seeks enforcement of any of the fundamental rights.12 Thus, the petitioner humbly
submits that writ petition is maintainable as existence of alternative remedy is not a bar
The court now permits Public Interest Litigation or Social Interest Litigation at the instance of
"Public spirited citizens" for the enforcement of constitutional & legal rights of any person or
group of persons who because of their socially or economically or physically disadvantaged
position are unable to approach court for relief. Public interest litigation is a part of the process
of participate justice and standing in civil litigation of that pattern must have liberal reception at
the judicial door steps was stated in Peoples Union for Democratic Rights v. Union of India13
"Public Interest Litigation means a legal action initiated in a court of law for the enforcement of
public interest or general interest in which the public or class of the community have pecuniary
interest or some interest by which their legal rights or liabilities are affected.", as defined in
Black’s Law Dictionary. Public Interest Litigation's explicit purpose is to alienate the suffering
off all those who have borne the brunt of insensitive treatment at the hands of fellow human
being. Transparency in public life & fair judicial action are the right answer to check increasing
menace of violation of legal rights. Traditional rule was that the right to move the Supreme Court
is only available to those whose fundamental rights are infringed.
10
State of Bombay V. United motors Ltd. AIR 1953 SC 252
11
K.K. Kouchunni V. State of Madras AIR 1959 SC 725
12
HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120
13
( A.I.R.. 1982 , S C 1473)
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A PIL can be filed against the State for the violation of fundamental rights under Article 32 of
the Constitution; therefore, the PIL is maintainable against the Respondents. Under the well-
established doctrine of ParensPatriae, it is the obligation of the State to protect and take into
custody the rights and the privileges of its citizens for discharging its obligations was stated in
Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 which the state is not doing in this
case.
2. WHETHER ARTICLE 14 UNDER CONSTITUTION OF VINDHYA IS VIOLATED

OR NOT ?
Art. 14 reads as follows “Equality before law The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.”
Equality is the basic feature of the constitution of India and treatment of equals unequally will be
violation of basic structure of the constitution of India.14 It has been seen that the Preamble to our
constitution promises ‘equality of status and opportunity to all citizens and that this is the ideal of
equality embraces both social and political equality. So far the ideal of social equality is
concerned it is embodied in a series of Articles, of which Art.14 is the genus, and succeeding
Arts. 15-18 contain particular application thereof. Our constitution is wedded to the concept of
equality which is the basic feature of the constitution. Even a constitutional amendment which
offends basic feature is declared as invalid. Neither Parliament nor any State Legislature can
transgress the principle of Equality.15 Here a whole act has been enacted treating people
unequally. The act divides the people as governmental and nongovernmental employees. This
makes the people question the validity of the act. The state, its agencies and other local bodies
being charged with public duty are bound to take action which must be in accordance with
Art.14.The liability given to the state and its instrumentalities by the statute enacted under the
14
M.G.Badappanavar v. State of Karnataka. (2001) 2 SCC 666
15
Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225
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constitution did not exempt them from honoring constitution itself and they continued to be ruled
by Art.14. The equality clause under Art.14 of the constitution does not speak of mere formal
equality before law but embodies the real concept of real and substantive equality, strikes at
these inequalities.16 In the present case the petitioners feel that the act is violating article 14. The
Constitution in which it was inter alia provided that “no person who has more than two children
and has not got himself or herself or his or her spouse sterilized or who, having not more than
two children does not give an undertaking not to have more than two children” shall be liable to
removal from service. “Government employees who undergo sterilization after having two or
three surviving children may be granted a special increment in the form of personal pay not to be
absorbed in future increases in pay either in the same post or on promotion to higher posts. The
rate of personal pay would be equal to the amount of the next increment at the time of the grant
of the next increment due at the time of the grant of the concession and will remain fixed during
the entire service”. It was also provided that the operation must be conducted and the certificate
must be issued by Government Hospital. Another condition which was laid down was that “the
concession will be admissible only to the Government employees who undergo sterilization
operation on or after the date of issue of these orders.”
This petitioner raises a common question of law viz. Is the action of the State Government in
declining the benefit of special increment to such Government employees as had undergone
sterilization prior to the issue of the Notification date.
Discriminatory and violative of Articles 14 and 16 of the Constitution? A few facts necessary
for the disposal of these petitions may be briefly noticed.
16
Secretary, H.S.E.B. v. Suresh AIR 1999 SC 1160: (1999)3 SCC 601
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The Government employees who had undergone sterilization on or before on or after the date of
commencement of this act and were given increment in the revised pay scale corresponding to
the pre-revised in which the employee was initially granted special increment.” The action of the
Government in declining to give the increment has been challenged as being wholly arbitrary and
violative of Articles 14 and 16 of the Constitution.
The respondents further maintain that the benefit in the circular is admissible only to those
persons “who underwent operation in expectation of an incentive…….” Accordingly, the action
is not violative of Articles 14 and 16 of the Constitution. It is also maintained that the
representations submitted by the petitioner were wholly lacking in merit and were thus rejected
by the State.17
The primary contention raised by the counsel for the petitioner was that there was no valid
basis for denying the benefit of the special increment to the petitioner and the action was thus
violative of Articles 14 and 16 of the Constitution. The claim was controverted on behalf of the
respondents.
In India, the population is increasing at an alarmingly rapid pace. As a result, the efforts for
economic growth are being continuously neutralized. For obvious reasons, this is a matter of
concern for everyone in this country. The decision of the Government to amend the Service
Rules and to make it compulsory for every Government employee, who had more than two
children to either himself or herself undergo the sterilization operation or to have his or her
spouse sterilized, was a laudable act. It was a step in the right direction. Every State in this
country, every employer would do well to emulate this example and make a similar provision.
This single measure may solve many problems that this country faces today. The fact that a
number of employees underwent surgery in pursuance to this provision shows that they
17
Nirmal Mittal v. state of Haryana (1993) 3 SLR 69(P&H)
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recognized purpose and object for which the rule had been promulgated. The Government
decided to grant a special increment in the form of personal pay to those employees who undergo
the sterilization operation after having two or three surviving children. It was provided that “the
concession will be admissible only to the Government employees who undergo the sterilization
operation on or after the date of the issue of these orders.” Was this condition valid?
Article 14 of the Constitution guarantees equality before the law (dicey law of constitution,
10th edition) and equal protection of law18. It ensures equal protection of laws. Neither
parliament nor any state legislature can transgress the principle of equality.19 It is undoubtedly
correct that Article 14 permits reasonable classification provided it has a nexus with the object
which is sought to be achieved.
In other words, those who are similarly placed have a right to be treated equally. It is in this
background that the question raised in the present cases has to be examine
The State Government had issued the Rules and made it incumbent on the employees who had
more than two children to undergo the sterilization operation either themselves or to have their
spouses sterilized. Those who did not have more than two children had to given an undertaking
not to have any more children. A failure in this behalf was to render the Government employee
liable to removal from service. The result is that an employee having more than two children had
to undergo the operation while those who had only two children had to give an undertaking. A
failure to undergo surgery or a violation of the undertaking was to entail the penal consequence
of removal from service.
This provision has not been abrogated till today. It continues to be in force. Thus, a Government
employee who has more than two children, is bound to undergo the operation while those who
have only two children are precluded from having any more. The object of this act is that, the
Government employees should not have children beyond the prescribed number. While the rule
18
DICEY LAW OF CONSTITUTION, 10TH EDITION
19
Ashutosh gupta v State of rajasthan (2002) 4 scc 34
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was in force, the Government decided to provide a further incentive in the form of a special
increment. The object of issue of this letter is to ensure that the Government employees who
have two or three surviving children must undergo the sterilization operation and those who do
so will be given a special increment. For achieving this object, it is really not material as to when
an employee has actually undergone the said surgery. Once they do so, there is no basis for
classifying them on the basis of the date of the commencement of act. The measure adopted by
the Government is illustrative of the policy of Rod and carrot. Those who have undergone the
surgery prior to the date of commencement are sought to be dealt with by a rod while others who
have undergone the surgery on or after commencement of the become entitled to the benefit of
special increment. Since every Government employee is governed by a uniform rule that he or
his spouse has to undergo the surgery, all employees who have already undergone or are going to
undergo the surgery in future, constitute one homogenous class. The date of surgery is of no
material consequence. It really does not have any relation with the object sought to be achieved.
Consequently, they have a right to be treated alike. All of them are entitled to the grant of the
special increment. The action of the Government is not giving them the benefit creates an
artificial classification which has no relation or nexus with the object for which the order was
issued. Treatment of equals unequally is violation of basic structure of the constitution20
Consequently, it is violation of the provision contained in Article 14 and cannot be sustained.
“All the persons, who have either themselves undergone the sterilization operation or whose
spouses have undergone the surgery, contribute to promote the objective of the State
Government. They form one class. The condition based on the date of undergoing the
sterilization operation does not provide any basis for rational classification in the present case.”21
20
M.G.badappanavar v st. of Karnataka (2001) 2 scc 666
21
Nirmal Mittal v state of Haryana (1993) 3 SLR 69 (P&H)
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International Covenant: Article 26- All persons are equal before the law and are entitled without
any discrimination to the equal protection of law. Article 26 of the International Covenant on
Civil and Political Rights, 1966, not only uses both the expressions but also adds explanatory
words, prohibiting discrimination.
Government servants do not lose the protection of Article 14 by entering into Government
service.22
Mentally retarded women:
Reproductive choice should be respected in spite of other factors such as the lack of
understanding of the sexual act as well as apprehensions about her capacity to carry the
pregnancy to its full term and the assumption of maternal responsibilities thereafter. We have
adopted this position since the applicable statute clearly contemplates that even a woman who is
found to be “mentally retarded” should give her consent for the termination of a pregnancy. 23
3.WHETHER ARTICLE 21 UNDER CONSTITUTION OF VINDHYA IS VIOLATED

OR NOT ?
Art.21 has a wider ambit which includes right to life, health, dignity, privacy, reproductive
autonomy, equality and to be free from inhuman and degrading treatment. Right to privacy has
been inherent in art.21 as enumerated in the landmark judgment of “PEOPLE’S UNION OF
CIVIL LIBERTY V. UNION OF INDIA”. This implies that every woman has the right to
privacy to decide whether to beget a child or not as it is dependent upon various reasons like
health, financial status, etc.
Right to privacy, which is again proclaimed a continuance of the right to life under Article 21. It
can also be said to be including the complete right of a woman over her reproductive organs. In
22
State of Orissa v. Dhirendra Nath Das, AIR 1961 SC 1715
23
Suchita Srivastava v. Chandigarh Admn.,SC (2009)
24 | P a g e
the United States of America, the Supreme Court held the right to privacy and ended the ban on
birth control back in 1965. Freedom from interference in one's privacy and family life is
protected by Article 12 of the Universal Declaration of Human Rights, Article 17 of the Civil
and Political Rights
Covenant, Article 11 of the American Convention, and Article 8(1) of the European Convention
.In the Supreme Court of Canada, interpreting Article 7 of the Canadian Charter which
guarantees an individual's right to life, liberty and freedom and security of a person.
The supreme court of US applied core constitutional principles of privacy and liberty to a
woman’s ability to terminate pregnancy and also held that constitutional right to privacy includes
a woman’s right whether to have an abortion or to continue with the pregnancy in the milestone
judgment24.
It is a right of an individual to be free from unwarranted government intrusion into the matters so
fundamentally affecting a person as the decision whether to bear or beget a child25.
This right emerges from her human right to live with dignity as a human being in the society
and protected as a fundamental right under Article 21 of the Constitution of India with
reasonable restrictions as contemplated under the Act. Human rights are natural rights and thus
a woman has a natural right in relation to her body which includes her willingness to be a
mother or her unwillingness to be a mother.
Sterilization … adversely affects women's physical and mental health, and infringes the right
of women to decide on the number and spacing of their children. The sterilization surgery was
24
Roe v. Wade, 410 U.S. 113 (1973
25
Eistenstadt V Baird, 405 U.S. 438 (1972)
25 | P a g e
performed on without her full and informed consent and must be considered to have
permanently deprived her of her natural reproductive capacity.”26
There has been recognition of the need to respect and protect the reproductive rights and
reproductive health of a person. Reproductive health has been defined as “the capability to
reproduce and the freedom to make informed, free and responsible decisions. It also includes
access to a range of reproductive health information, goods, facilities and services to enable
individuals to make informed, free and responsible decisions about their reproductive
behavior”. WHO, Sexual Health, Human Rights and the Law (2015) cited from Committee on
Economic, Social and Cultural Rights, General Comment No. 22 (2016) on the Right to
Sexual and Reproductive Health (Article 12 of the International Covenant on Economic,
Social and Cultural Rights), “The right to sexual and reproductive health is an integral part of
the right of everyone to the highest attainable physical and mental health.”
Female versus male sterilization

A perusal of the various affidavits on record indicates that the sterilization programme is
virtually a relentless campaign for female sterilization. This is more or less confirmed from the
figures available on the website of the Ministry of Health and Family Welfare of the Government
of India which indicate the following:
Year 2013 2014
Female sterilizations 1,57,431 1,49,262
Male sterilizations 8130 5085
Total sterilizations 1,65,561 1,54,347
% Female sterilizations 95.09% 96.7%
26
Devika biswas v Union of India. (2016) 10 scc 726
26 | P a g e
% Male sterilizations 4.91% 3.29%
The issue of male versus female sterilizations was debated and discussed during the course
of the hearings and it was conceded by all the learned counsel that the sterilization programme
cannot be targeted primarily towards women but must also actively include the sterilization of
men as well.27 It appears to us, without going into the merits and demerits of the incentives given
for undergoing the sterilization procedure, the documents on record indicate that the incentive
given to males for undergoing a sterilization procedure is less than it is for females and that may
perhaps be one of the reasons why the percentage of males being sterilized is so remarkably low
as compared to females. This is an area that the Union of India must address itself to, if nothing
else then at least for reasons of gender equity.
There is no doubt that a woman's right to make reproductive choices is also a dimension of
`personal liberty' as understood under Article 21 of the Constitution of India. It is important to
recognize that reproductive choices can be exercised to procreate as well as to abstain from
procreating.28
The European Commission of Human Rights has propounded in its judgments, like that in cases
of Bruggemann and Scheuten v. Federal Republic of Germany 29 and Paton v. United
Kingdom30 decisions one makes about one's body, particularly one's reproductive capacity, lie
squarely in the domain of private decision-making.
The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means
something much more than just physical survival. In Kharak Singh v. State of U.P.31 Subba Rao,
27
Devika Biswas v. Union of India, (2016)
28
Suchitha Srivastava &Anr. V Chandigarh Administration, AIR2010SC235
29
(1981) 3 EHRR 244
30
3 EHRR 408 1980
31
(1964) 1 SCR 232
27 | P a g e
J. quoted with approval the following passage from the judgment of Field, J. in Munn v. Illinois32
to emphasize the quality of life covered by Article 21 33. “By the term “life” as here used
something more is meant than mere animal existence. The inhibition against its deprivation
extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits
the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the
destruction of any other organ of the body through which the soul communicates with the outer
world” and this passage was again accepted as laying down the correct law by the Constitution
Bench of this Court in the first Sunil Batra case34 . Every limb or faculty through which life is
enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of
thinking and feeling. Now deprivation which is inhibited by Article 21 may be total or partial,
neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover it
is every kind of deprivation that is hit by Article 21, whether such deprivation is permanent or
temporary and, furthermore, deprivation is not an act which is complete once and for all: it is a
continuing act and so long as it lasts, it must be in accordance with procedure established by law.
It is therefore clear that any act which damages or injures or interferes with the use of, any limb
or faculty of a person, either permanently or even temporarily, would be within the inhibition of
Article 21.35
Fundamental right in the Indian Constitution is the early decision of the Supreme Court in the
case of A.K. Gopalan v. State of Madras. Article 21 of the Constitution provides that no person
shall be deprived of his life and personal liberty except according to procedure established by
law. The Supreme Court by a majority held that 'procedure established by law' means any
procedure established by law made by the Parliament or the legislatures of the State. The
32
(1877) 94 US 113 : 24 L Ed 77
33
Sunil Batra (I) v. Delhi Admn, SCR p 503 : SCC p 574 : SCC (Cri) p 235
34
M.H. Hoskot v. State of Maharashtra, (1979) 1 SCR 192 : (1978) 3 SCC 544 : 1978 SCC (Cri) 468
35
Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 : 1981 SCC (Cri)
28 | P a g e
Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated
solely upon the existence of enacted law. After three decades, the Supreme Court overruled its
previous decision in A.K. Gopalan case and held in its landmark judgment in Menaka Gandhi v.
Union of India and another that the procedure contemplated by Article 21 must answer the test of
reasonableness. The Court further held that the procedure should also be in conformity with the
principles of natural justice. This example is given to demonstrate an instance of expansive
interpretation of a fundamental right. The expression 'life' in Article 21 does not connote merely
physical or animal existence. The right to life includes right to live with human dignity. There
are numerous cases deduced fundamental features which are not specifically mentioned in Part-
III on the principle that certain unarticulated rights are implicit in the enumerated guarantees.
The Supreme Court has certainly interpreted article 21 and recognized that a person has complete
rights of control over his body organs and his ‘person’. Thus Right to procreation and to have
control over one's reproductive organ. The right to your body lies with you and no one else. Any
forced act upon your body without your consent is a violation of basic human rights.
It is necessary to reconsider the impact that policies such as the setting of informal targets and
provision of incentives by the Government can have on the reproductive freedoms of the most
vulnerable groups of society whose economic and social conditions leave them with no
meaningful choice in the matter and also render them the easiest targets of coercion. The cases
of Paschim Banga Khet Mazdoor Samity.36 and Bandhua Mukti Morcha 37 have emphasized that
the State's obligation in respect of fundamental rights must extend to ensuring that the rights of
the weaker sections of the community are not exploited by virtue of their position. Thus, the
policies of the Government must not mirror the systemic discrimination prevalent in society but
must be aimed at remedying this discrimination and ensuring substantive equality. In this regard,
36
Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37
37
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389
29 | P a g e
it is necessary that the policies and incentive schemes are made gender neutral and the
unnecessary focus on female sterilization is discontinued.
Right to health and reproductive freedom of persons were all comes under shield of article 21, so
it is the duty of government to protect it .The right to life includes the right to lead dignified and
meaningful life and right to health is integral facet of this right .Further held, reproductive right
is aspect of personal liberty and includes right to make choice regarding sterilization on basis of
informed consent and free from any form of coercion.
It is necessary to reconsider impact of policies such as setting of informal targets and providing
incentives on reproductive freedoms of most vulnerable groups of society whose economic and
social conditions leave them with no meaningful choice in the matter and also render them
easiest targets of coercion .The state’s obligation in respect of fundamental rights must extend to
ensuring that rights of weaker sections of community are not exploited by virtue of their position.
This attitude of the Indian State towards reproductive autonomy has remained fundamentally the
same in the post-Emergency era as well. For instance, the population policies of many States, in
a disturbing likeness to the sterilization program of the Emergency days, provide that financial
assistance at the Panchayati level is contingent upon a district's performance in achieving "family
planning targets." Tagging sterilization with such massive monetary benefits precludes
individuals from making an informed reproductive choice. In a country where over one-fourth of
the population is below the poverty line, disincentives tagged with basic human needs such as
food, do not remain mere disincentives. Inevitably, they take on a coercive character.
Reproductive autonomy is thus, effectively curtailed by most of India's population policies. That
the Central Government in the year 2003 sanctioned a "targeted" approach to population control,
whereby States would be expected to achieve sterilization targets, further substantiates this point.
These policies entirely disregard the right to reproductive choices, and privilege State interest in
30 | P a g e
population control over individual autonomy, in consonance with a utilitarian approach to State
action.
The Indian judiciary has been cognizant of, and approved of the State's demographic concerns.
This is well illustrated by the recent decision in Javed vs St. of Haryana.38 Indian Courts and
policy makers have consistently refused to recognize that although the goal of limiting
population growth is a legitimate one, there is little justification for infringing on a freedom as
fundamental as the right to procreate, in order to achieve this end. There is need for the Indian
State to explore alternatives to sterilization such as education about family planning methods,
literacy and women's empowerment. Kerala is a striking example of the fact that such an
integrated policy, which balances reproductive rights with the goal of population control, can be
a success.
Kerala has the highest sex ratio among all States at 1058 females for 1000 males, as of 2001. In
fact, it is the only Indian State with more females than males per 1000. Since 1981, it has
consistently registered the lowest growth rate of population amongst all Indian States. For
instance in the decade from 1991-2001, the growth rate of population in Kerala was 9-42 as
compared to the all-India average of 21.34. CENSUS OF INDlA,2001.
38
(2003) 8 SCC 369
31 | P a g e
PRAYER
With the issues raised, precedents and articles cited, enactments mentioned, law enlightened and
arguments advanced, the counsel put forth the following prayers.
1: THE WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF

VINDHYA IS MAINTAINABLE.
2: ARTICLE 14 UNDER CONSTITUTION OF VINDHYA IS VIOLATED.
3: ARTICLE 21 UNDER CONSTITUTION OF VINDHYA IS VIOLATED.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience.
All of which is respectfully submitted.
And for this, the Applicants as in duty bound, shall humbly pray.
Sd/-
COUNSEL FOR THE PETITIONER
32 | P a g e

Bishop Cotton Womens Christian Law Colle

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TEAM CODE – 04-P

BISHOP COTTON WOMEN’S CHRISTIAN LAW COLLEGE

6TH NATIONAL MOOT COURT COMPETITION 2017

BEFORE THE HONOURABLE SUPREME COURT OF VINDHYA

[Under ARTICLE 32 OF THE CONSTITUTION OF VINDHYA]

PUBLIC INTEREST LITIGATION No. _____/2017

WRIT PETITION NO. of 2017

Mr. Ananda Anantam Raju & Smt. Rashmi Jacob ….Petitioner

The Union of Vindhya …. Respondent

AGAINST THE IMPUGNED PROVISIONS OF THE POPULATION CONTROL

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

Statement of Issues ……………………………………………………………… 12

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

S.No Case name Citation

3. Bugdaycay Case At 531 E-G

4. Devika biswas v Union of India. 2016) 10 scc 726

5. Eistenstadt V Baird 405 U.S. 438 (1972)

6. Emperor Vs. Jeshingbhai Ishwarlal Dhobi AIR 1950 Bom 363

7. Francis Coralie Mullin v. Administrator, Union (1981) 1 SCC 608 : 1981

8. HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120

9. K.K. Kouchunni V. State of Madras AIR 1959 SC 725

10. Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225

11. Kharak Singh v. State of U.P (1964) 1 SCR 232

12. M.G.Badappanavar v. State of Karnataka (2001) 2 SCC 666

13. Munn v. Illinois (1877) 94 US 113 : 24 L Ed

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

15. Nirmal Mittal v state of Haryana (1993) 3 SLR 69 (P&H)

16. Paschim Banga Khet Mazdoor Samity v. State of (1996) 4 SCC 37

17. Paton v. United Kingdom 3 EHRR 408 1980

18. Roe v. Wade 410 U.S. 113 (1973)

19. Roop Chand v. State of Punjab AIR 1963 SC 1503

20. Secretary, H.S.E.B. v. Suresh AIR 1999 SC 1160: (1999)3

22. State of Bombay V. United motors Ltd. AIR 1953 SC 252

23. State of Orissa v. Dhirendra Nath Das AIR 1961 SC 1715

25. Suchitha Srivastava &Anr. V Chandigarh AIR2010SC235

26. Bruggemann & Scheuten v. Federal republic of (1981) 3 EHRR 244

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

S.NO ABBREVIATIONS EXPANSION

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

27. EHRR European Human Rights Report

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

A. LIST OF BOOKS REFERRED TO (BIBLIOGRAPHY):

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

B. LIST OF LEGISLATIONS REFERRED TO:

Haryana panchayati raj act 1994

Population policy act ,2000

C. LIST OF CONVENTIONS REFERRED TO:

European human rights report

D. LIST OF WEBSITES REFERRED TO (WEBLIOGRAPHY):

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

MEMORANDUM ON BEHALF OF THE PETITIONER

6TH NATIONAL MOOT COURT COMPETITION 2017

MEMORANDUM ON BEHALF OF THE PETITIONER