~2nd NLIU-LAC (Legal Aid Clinic) PIL Drafting Competition~ TC-08

~2nd NLIU-LAC (Legal Aid Clinic) PIL Drafting Competition~ TC-08

BEFORE

THE HON’BLE SUPREME COURT OF INDIA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

IN THE PROCEEDING BETWEEN,

ORGANISATION FOR HEALTH, LAW, ETICHS AND TECHNOLOGY (OHLET) &Ors.

……………………………………………………….………………………PETITIONER

VERSUS

UNION OF INDIA……………….…………………………………………. RESPONDENT(S)

MOST RESPECTFULLY SUBMITTED

COUNSEL APPEARING ON BEHALF OF THE PETITIONERS

~MEMORIAL ON BEHALF OF PETITIONERS~

TABLE OF CONTENTS

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LIST OF ABBREVIATIONS ..................................................................................................... iii

LIST OF PARTIES OF THE PIL ............................................................................................... v

LIST OF AUTHORITIES ........................................................................................................... vi

STATEMENT OF JURISDICTION ........................................................................................ viii

BACKGROUND OF THE CASE............................................................................................... ix

ISSUES AT MEASURES ............................................................................................................ xi

SUMMARY OF PLEADINGS .................................................................................................. xii

LEGAL PLEADINGS ................................................................................................................ 13

I. THAT THE WRIT PETITION FILED UNDER ART 32 OF THE CONSTITUTION

OF INDIA IS MAINTAINABLE. .......................................................................................... 13

A. THAT THE PETITIONER HAS THE LOCUS STANDI AND THE PETITIONER HAS
APPROACHED THE COURT WITH BONA FIDE INTENTION. ........................................ 13

B. THAT THE PIL CANNOT BE BARRED BY DOCTRINE OF EXHAUSTION OF

ALTERNATIVE REMEDIES.................................................................................................. 14

II. THAT THE ABORTION LAWS VIOLATES RIGHT TO LIFE AND PRIVACY OF
WOMEN. ................................................................................................................................. 14

A. THAT IT ACTS AS A BARRIER TO ACCESS SAFE ABORTION SERVICES............... 15

B. THAT IT INFRINGES RIGHT TO HEALTH OF WOMEN. .......................................... 16

C. THAT IT ALSO INFRINGES BODILY INTEGRITY, DIGNITY AND PRIVACY. ......... 17

III. THAT THERE IS AN OBLIGATION TO PROVIDE SAFE REPRODUCTIVE

AND SEXUAL HEALTH SERVICES. ................................................................................. 18

A. THAT THE OBLIGATION UNDER THE CONSTITUTION OF INDIA. ...................... 18

B. THAT THE OBLIGATION UNDER INTERNATIONAL CONVENTION. ..................... 18

PRAYER ...................................................................................................................................... 20

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LIST OF ABBREVIATIONS

& And

§ Section

¶ Paragraph

AIR All India Report

Art. Article

A.P Andhra Pradesh

Ch. Chapter

CEDAW Convention on the Elimination of All Forms of

Discrimination against Women
Civ. Civil

Cri. Criminal

Guj. Gujarat

Ibid In the same place

ILR Indian Law Report

IPC Indian Penal Code, 1860

Ltd. Limited

MTP Medical Termination of Pregnancy

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No. Number

Pg. Page

Ors. Others

PIL Public Interest Litigation

S/d Signed

SCC Supreme Court Cases

SCR Supreme Court Report

Supra Above

T.N Tamil Nadu

UOI Union Of India

UP Uttar Pradesh

v. Versus

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LIST OF PARTIES OF THE PIL

In the matter of:

1. Organization of Health, Law, Ethics and Technology, Motibagh, Post Office: Motibagh, Police
Station: Motibagh, New Delhi, 110032
2. M/s Sartia, daughter of Shyam Sharma, Village: Pureana, District: Pureana, Bihar, 804419
3. M/s Kanchan, daughter of Ram Chander, Village: Sahebganj, District: Sahebganj, Jharkhand,
816109
……………………………………………………………………. PETITIONERS

VERSES

1. UOI Through Chief Secretary, Government of India.

2. Ministry of Women and Child Development Through Joint Secretary of Department Women
and Child Development
3. Ministry of Health and Family Welfare Through Its Secretary
4. Central Social Welfare Board Through Its Chairman
……………………………………………………………………… RESPONDENTS

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LIST OF AUTHORITIES

Cases

1. Akhil Bharatiya Soshit Karamchari Sangh v. UOI ........................................................... 12

2. Apparel Export Promotion Council v. Chopra ................................................................. 18
3. Baburam Maheshwari v. Anarim Zila Parishad ................................................................ 13
4. Bhavikaben v. State of Gujarat ......................................................................................... 16
5. Himmatlal v. State of Madhya Pradesh ............................................................................ 13
6. Justice K S Puttaswamy (Retd.), & Anr V. Union of India And Ors ............................... 16
7. Madhu Kishwar v. State of Bihar ..................................................................................... 15
8. People’s Union for Democratic Rights v. UOI ................................................................. 12
9. R v. State of Haryana ........................................................................................................ 16
10. Ram and Shyam Co. v. State of Haryana.......................................................................... 13
11. Raunaq International Ltd. v. I.V.R. Construction Ltd ...................................................... 13
12. S.P. Gupta v. UOI ............................................................................................................. 12
13. Shaikh Ayesha Khatoon v. UOI........................................................................................ 16
14. Star Paper Mills Ltd. v. State of U.P ................................................................................ 13
15. Suchita Srivastava v. Chandigarh Administration ............................................................ 17
16. U.P. State Spinning Co. Ltd. v. R.S. Pandey and Ors....................................................... 13

Statutes

1. The Constitution of India, 1950 ........................................................................................ 18

2. The Medical Termination of Pregnancy Act, 1971 .......................................................... 15

Other Authorities

1. Center for Reproductive Rights, LITIGATING REPRODUCTIVE RIGHTS: Using Public

Interest Litigation and International Law to Promote Gender Justice in India, ISBN: 1-
890671-34-7, 2006 ............................................................................................................ 17
2. Diana Greene Foster et al., Effects of Carrying an Unwanted Pregnancy to Term on
Women's Existing Children, 205 THE JOURNAL OF PEDIATRICS (2019) ................ 15

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3. Dipika Jain & Payal K. Shah, “Reimagining Reproductive Rights Jurisprudence in India:
Reflections on The Recent Decisions on Privacy and Gender Equality from The Supreme
Court of India” Columbia Journal of Gender and Law 19 39.2 (2020) ........................... 16
4. Dipika Jain, “Time to Rethink Criminalization of Abortion? Towards A Gender Justice
Approach”12 NUJS L. Rev 1 14 (2019 ............................................................................. 14
5. Jinwook Bahk et al., Impact of unintended pregnancy on maternal mental health: a causal
analysis using follow up data of the Panel Study on Korean Children (PSKC), 15 BMC
PREGNANCY AND CHILDBIRTH 85 (2015)............................................................... 15
6. Krishna Kumar, Law of abortion: Critical study from the perspective of women’s right to
privacy, International Journal of Applied Research 2017; 3(10): 111-117 ...................... 14
7. Linda Sanneving et al., Inequity in India: The Case of Maternal And Reproductive Health,
GLOBAL HEALTH ACTION (2013).............................................................................. 16
8. Michelle Oberman, The Consequences of El Salvador’s Abortion Ban, January 11, 2018
........................................................................................................................................... 16
9. Press Trust of India, After Max Hospital Death, IMA Issues Guidelines on Foetal Viability,
December 15, 2017 ........................................................................................................... 17
10. Ravi Duggal & Vimala Ramachandran, The Abortion Assessment Project—India: Key
Findings and Recommendations, 12 REPRODUCTIVE HEALTH MATTERS 24, 122-129
(2004) ................................................................................................................................ 16

Treatises

1. Convention on the Elimination of All Forms of Discrimination against Women ............ 18

2. U.N. Human Rights Comm., 68th Sess., General Comment No. 28: Article 3 (The Equality
of Rights Between Men and Women), ¶¶ 19–20, U.N. Doc. CCPR/C/21/Rev.1/Add.10
(Mar. 29, 2000................................................................................................................... 17

Books

1. Ramachandran, Law of Writs 974 (6th ed. 2006) ............................................................. 12

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STATEMENT OF JURISDICTION

The petitioner humbly submits that this court has the requisite jurisdiction under Art. 32 of the
Constitution of India on the ground of violation of Art. 21 and 14.

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BACKGROUND OF THE CASE

1. Abortion is one of the subjects that has been discussed extensively in both national and
international level. The general question around which the discourse revolves is of
morality, women’s right, life of foetus and state’s authoritative role in regulating the
women’s reproductive right. The sacrosanct notion of family is prevalent in our society
from time immemorial. In such institution women distinctly play a contributory role. The
evolution of human life takes place in the womb of mother.
2. In India, one woman dies approximately every four minutes due to lack of healthcare
during pregnancy or childbirth. Although the country legalized abortion in 1971, access is
so limited that every year an estimated 6.7 million women seeking to terminate a pregnancy
undergo unsafe procedures performed by unlicensed practitioners. Women hardly have any
choice in decision-making about having children or the number and spacing of children.
The family and the male members often make these decisions and women are further
burdened to produce male children. And according to IPC abortion is a crime punishable
for both the woman and the abortionist except to save the life of the woman. Due to
criminalization marginalized women and girls are disproportionately impacted by
restrictions on abortion access. Thus, this denies women bodily integrity, dignity, equality
and autonomy.
3. Without reproductive and sexual health autonomy, women face discriminatory interference
with a wide range of human rights, including life, liberty, security, health, and freedom
from torture and ill-treatment.
4. Organization for Health Law, Ethics and Technology (OHLET), which is a non-
governmental organization and it also conducts legal empirical research on contemporary
questions of sexuality, gender, public policy and public health law. OHLET filed a petition
in the Supreme Court challenging these archaic and parochial laws related to abortion as it
violates fundamental rights of women. OHLET pleaded that abortion services should be
considered a non-criminal public health issue reflecting unequal access to care and should

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be available to all women and girls and gender diverse persons, irrespective of their marital
status.
5. After first hearing of the petition filed by OHLET, twenty-year-old Sarita approached the
Supreme Court of India seeking permission to terminate her twenty-five-week pregnancy.
Sarita was a domestic violence survivor and suffered from other health complications due
to epilepsy. She had learned of her pregnancy at seventeen weeks and her petition stated
that she had become pregnant as a result of her husband’s refusal to use contraceptives. At
twenty-one weeks, when she first approached the Bombay High Court, Sarita was just one
week over the legal limit specified in the 1971 Medical Termination of Pregnancy (MTP
Act), which permits termination of pregnancies on certain grounds up to twenty weeks.
When the court refused permission,3 Sarita appealed to the Supreme Court.
6. In another petition, an Adivasi girl and rape survivor, wanted to terminate a pregnancy at
twelve weeks. The District Hospital referred her to the State Institute of Medical Sciences
(SIMS), where she was asked to produce a copy of the FIR, medico-legal documents, and
a reference letter from the District Hospital. She was unable to obtain these documents,
allegedly due to the callous attitude of the Thana in charge. She then approached the
Supreme Court seeking permission to terminate the unwanted pregnancy.

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ISSUES AT MEASURES

A.

WHETHER THIS WRIT PETITION FILED UNDER ART 32 OF THE

CONSTITUTION IS MAINTAINABLE?

B.

WHETHER ABORTION LAWS VIOLATES RIGHT TO LIFE AND PRIVACY

OF WOMEN?

C.

WHETHER THERE IS AN OBLIGATION TO PROVIDE SAFE

REPRODUCTIVE AND SEXUAL HEALTH SERVICES?

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SUMMARY OF PLEADINGS

A. THAT THE WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA IS MAINTAINABLE.

The petition is maintainable because the petitioner has the requisite locus standi in this case. There
need not be any personal injury. It is the duty of the State to protect the rights of the helpless and
weak citizens. Further, women have been given the right to life under Art. 21, they are denied of
this right due to these abortion laws.

Safe abortion ought to be considered a non-criminal issue, accessible to everyone and decided
upon by the person who is pregnant. The current legal framework jeopardizes the complete
wellbeing of women, leaving them confused, scared and unable to attain medically safe and
affordable abortion services. Criminalization has a chilling effect on the provision of sexual and
reproductive health services. Hence, there is an urgent need to decriminalize abortions in order to
allow women to have full power over the decisions regarding their reproductive autonomy.

B. THAT THE ABORTION LAWS VIOLATES RIGHT TO LIFE AND PRIVACY

OF WOMEN.

Sec. 312 of IPC criminalizes abortion without making distinction between wanted and unwanted
pregnancy. The MTP act permits abortion only in certain cases. Thus, it acts as an exception. The
disproportionate burden placed on women as child bearers and caregivers, compelling them to
continue with unwanted pregnancies is an issue of severe gender injustice. Criminalizing
abortions, except under restrictive grounds and only within certain gestational limits, is a major
barrier to women’s exercise of reproductive autonomy.

C. THAT THERE IS AN OBLIGATION TO PROVIDE SAFE REPRODUCTIVE

AND SEXUAL HEALTH SERVICES.

The Indian government is legally bound to respect, protect, and fulfill women’s reproductive rights
pursuant to numerous international conventions that it has ratified. According to the Vienna
Convention on the Law of Treaties, a state that ratifies or accedes to an international convention
establishes on the international plane its consent to be bound by a treaty

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LEGAL PLEADINGS

I. THAT THE WRIT PETITION FILED UNDER ART 32 OF THE

CONSTITUTION OF INDIA IS MAINTAINABLE.
1. It is humbly submitted before the Hon’ble Supreme Court of India that this Public Interest
Litigation [“PIL”] is maintainable because the Petitioner has the locus standi and the
petitioner has approached the court with bona fide intention [A]; and the doctrine of
exhaustion of alternative remedies is inapplicable [B].

A. THAT THE PETITIONER HAS THE LOCUS STANDI AND THE PETITIONER HAS
APPROACHED THE COURT WITH BONA FIDE INTENTION.
2. It is submitted that as per the traditional rule of the doctrine of Locus standi, the judicial
redress is only available to a person whose legal rights are affected, that is, the aggrieved
person.1 However, this requirement of the doctrine has been relaxed. 2 In People’s Union
for Democratic Rights v. UOI,3 Bhagwati J. specifically held that this narrow concept of
Locus standi has been done away with and held that “having regard to peculiar socio-
economic conditions in the country with poverty and illiteracy, the rule was impeding
justice to various class of people”.
3. Hence, where a legal or constitutional right of a certain class of persons is infringed, and
such class is helpless or disabled to approach the court, any public-spirited citizen (a third
party)4 can file a PIL on their behalf.5 A PIL can be entertained if there is a serious threat
to the fundamental rights.6
4. “Bona Fide” means in good faith. In the landmark case of S.P. Gupta v. UOI,7 it was held
that: “But we must hasten to make it clear that the individual who moves to the court for

1
S.P. Gupta v. UOI, AIR 1982 SC 149; V.G. Ramachandran, Law of Writs 974 (6th ed. 2006)
2
Akhil Bharatiya Soshit Karamchari Sangh v. UOI, (1981) 1 SCC 246.
3
People’s Union for Democratic Rights v. UOI, AIR 1982 SC 1473.
4
Id.
5
S.P. Gupta v. UOI, AIR 1982 SC 149
6
Id.
7
Id.

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judicial redress in cases of this kind must be acting bona fide with a view to vindicating
the cause of justice….”
5. It was also held that: “—litigation undertaken for the purpose of redressing public injury,
enforcing public duty, protecting social, collective, ‘diffused’ rights and interests or
vindicating public interest, any citizen who is acting bona fide and who has sufficient
interest has to be accorded standing.”
6. Abortion services should be considered a non-criminal public health issue reflecting
unequal access to care and should be available to all women and girls and gender diverse
persons, irrespective of their marital status. Decriminalizing abortion would allow women
to freely exercise their right to decisional autonomy within a gender justice framework.

B. THAT THE PIL CANNOT BE BARRED BY DOCTRINE OF EXHAUSTION OF

ALTERNATIVE REMEDIES.
7. The doctrine of exhaustion of alternative remedies states that a litigant must approach that
is closest to him/her in the judicial structure as per hierarchy. It has been developed as a
rule of policy, convenience and discretion and never a rule of law. 8However, it is
established that when a violation of a fundamental right is in question it is the duty and
obligation of the Court to safeguard such a right.9It is also settled that a writ of mandamus
should not be refused in matters regarding a question of infringement of Fundamental
Rights.10 Moreover, an alternate remedy must be adequate and efficacious in nature,11
otherwise the existence of such a remedy is a mirage and its exercise is futile.12

II. THAT THE ABORTION LAWS VIOLATES RIGHT TO LIFE AND

PRIVACY OF WOMEN.
8. It is humbly submitted before the Hon’ble Court that the abortion laws violate the right to
life of women as it acts as a barrier to access safe abortion services [A]; it infringes right
to health of women [B] and it also infringes bodily integrity, dignity and privacy. [C]

8
U.P. State Spinning Co. Ltd. v. R.S. Pandey and Ors, (2006) SCC(LS) 78.
9
Baburam Maheshwari v. Anarim Zila Parishad, AIR 1969 SC 556.
10
Himmatlal v. State of Madhya Pradesh, AIR 1954 SC 403.
11
Star Paper Mills Ltd. v. State of U.P., (2006) 10 SCC 201
12
Ram and Shyam Co. v. State of Haryana, AIR 1985 SC 1147.

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A. THAT IT ACTS AS A BARRIER TO ACCESS SAFE ABORTION SERVICES.

9. § 312 of code permits abortion only on therapeutic ground in order to protect the life of
mother.13 Such provisions in criminal law may be required to address situations where a
woman’s pregnancy is terminated due to intentional bodily harm or medical negligence.14
However, by failing to make a distinction between the termination of wanted and unwanted
pregnancies, the law makes it extremely challenging for women to access safe abortion
services at will.15 The MTP Act was created to legislatively govern the exception to the
criminalization of abortion under §312 of the IPC, in order to enable medical practitioners
to terminate pregnancies under certain conditions.
10. The MTP Act allows registered medical practitioners to perform abortions up to twenty
weeks’ gestation but only under certain conditions, laid down in §3at certified medical
facilities.16 The conditions under which pregnancy can be terminated are:
a. risk to the life of the woman
b. risk of grave injury to her physical or mental health (considering her actual or
foreseeable environment.
c. serious foetal abnormalities.
11. According to Explanation 1 of the section the anguish of a pregnancy caused by rape
constitutes grave injury to mental health.17 Explanation 2 provides that a married woman
can be granted an abortion if a contraceptive method used by her or her husband has
failed.18
12. The recent amendment bill has extended the upper gestation limit from 20 to 24 weeks for
women falling under special category which includes survivor of rape, victims of incest
and in cases of substantial foetal abnormalities there is no gestational limit.19

13
Krishna Kumar, Law of abortion: Critical study from the perspective of women’s right to privacy, International
Journal of Applied Research 2017; 3(10): 111-117
14
Dipika Jain, “Time to Rethink Criminalization of Abortion? Towards A Gender Justice Approach”12 NUJS L. Rev
1 14 (2019)
15
Id.
16
Id.
17
The Medical Termination of Pregnancy Act, 1971, § 3, 1971 (Act No. 34 of 1971)
18
Id.
19
Id.

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13. However, the act is lauded as a progressive step but the MTP Act is doctor-centric and does
not frame abortion within a gender justice framework; it is the doctor who has the final say
on whether a woman can get an abortion, as the doctor’s opinion is decisive under the
grounds and restrictions laid down.
14. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been
subjected to all inequities, indignities, inequality and discrimination.” This is observation
of the apex court in the case of Madhu Kishwar v. State of Bihar.20These laws show our
parochial, patriarchal and paternal mindset towards women who are relegated to the role
of ‘natural’ caregivers and child bearers compelled to continue with unwanted pregnancies.

B. THAT IT INFRINGES RIGHT TO HEALTH OF WOMEN.

15. Unwanted pregnancy is a risk factor for poor maternal mental health,21 and may have
negative consequences for any existing children.22 There are several indirect barriers which
prevent access to safe abortion and third-party authorization is one of them.
16. Doctors often advise pregnant women to obtain a court order giving them permission to
terminate the pregnancy.23 Such denial of services has forced women to approach the Court
for permission to abort. The double layer of authorization, from the court and then the
medical board, is unnecessary especially given that reliance is ultimately placed on the
opinion of registered medical practitioners to determine whether termination can be carried
out.24Bhavikaben v. State of Gujarat,25 and Shaikh Ayesha Khatoon v. UOI26and in R v.
State of Haryana,27the Court observed that the pregnant woman had been referred to
multiple medical boards which returned differing opinions; this ultimately delayed the
matter to a point where the pregnancy had advanced beyond twenty-four weeks and could
no longer be terminated.

20
Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125
21
Jinwook Bahk et al., Impact of unintended pregnancy on maternal mental health: a causal analysis using follow up
data of the Panel Study on Korean Children (PSKC), 15 BMC PREGNANCY AND CHILDBIRTH 85 (2015).
22
Diana Greene Foster et al., Effects of Carrying an Unwanted Pregnancy to Term on Women's Existing Children,
205 THE JOURNAL OF PEDIATRICS (2019)
23
Dipika Jain, Supra Note 17
24
Dipika Jain, Supra Note 17
25
Bhavikaben v. State of Gujarat, (2016) SCC Online Guj 9142
26
Shaikh Ayesha Khatoon v. UOI, (2018) 3 Mh. LJ
27
R v. State of Haryana, (2016) SCC Online P&H 18369

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17. It has been well documented that banning or restricting abortion does not eliminate demand
– it only eliminates access to safe abortions.28 Anti-abortion laws have a disproportionate
effect on those already marginalized.29 Studies have noted that the cost of an abortion in
the private sector is a major barrier to abortion access for Dalit and Adivasi groups.30
Women in these groups experience poorer maternal health outcomes as a result of the
barriers in accessing healthcare services.31Denial of healthcare services is a violation of the
fundamental right to life and liberty under Art 21 of the Constitution.

C. THAT IT ALSO INFRINGES BODILY INTEGRITY, DIGNITY AND PRIVACY.

18. The Hon’ble Supreme Court has identified three core values to ground this right:
autonomy, bodily integrity, and dignity.32 In the Puttaswamy case it was recognized that
reproductive rights fall within the ambit of the right to privacy.33 Reproductive rights are
an essential component of pregnant persons’ autonomy, bodily integrity, and dignity.34
Importantly, without reproductive autonomy and health, pregnant persons face
discriminatory interference with a wide range of human rights, including life, liberty,
security, health, and freedom from torture and ill-treatment.35
19. “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.”36The
burden of an accidental or unwanted pregnancy falls disproportionately on women.
20. It should be noted here that the Indian Medical Association issued guidelines on foetal
viability in 2017, where it stated that twenty-eight weeks has been set as the stage of

28
Michelle Oberman, The Consequences of El Salvador’s Abortion Ban, January 11, 2018, available at
https://www.guernicamag.com/consequences-el-salvador(Last visited on 16TH NOV, 2021)
29
Ravi Duggal & Vimala Ramachandran, The Abortion Assessment Project—India: Key Findings and
Recommendations, 12 REPRODUCTIVE HEALTH MATTERS 24, 122-129 (2004)
30
Id.
31
Linda Sanneving et al., Inequity in India: the case of maternal and reproductive health, GLOBAL HEALTH
ACTION (2013).
32
Justice K S Puttaswamy (Retd.), &Anr v. Union of India And Ors. (2017) 10 SCC 1
33
Id.
34
Dipika Jain &Payal K. Shah, “Reimagining Reproductive Rights Jurisprudence in India: Reflections on The Recent
Decisions on Privacy and Gender Equality from The Supreme Court of India” Columbia Journal of Gender and Law
19 39.2 (2020)
35
U.N. Human Rights Comm., 68th Sess., General Comment No. 28: Article 3 (The Equality of Rights Between Men
and Women), ¶¶ 19–20, U.N. Doc. CCPR/C/21/Rev.1/Add.10 (Mar. 29, 2000)
36
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.

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viability.37The chance of survival for a foetus under twenty-eight weeks is low. Thus, any
legislation on abortion should that set the gestational limit at twenty is extremely restrictive
and in contradiction to medical opinion.

III. THAT THERE IS AN OBLIGATION TO PROVIDE SAFE

REPRODUCTIVE AND SEXUAL HEALTH SERVICES.
21. It is humbly submitted before the Hon’ble Supreme Court of Indiathat there is an obligation
to provide safe reproductive and sexual health services under the constitution of India [A];
and under international conventions. [B]

A. THAT THE OBLIGATION UNDER THE CONSTITUTION OF INDIA.

22. Art 21 right to life with human dignity “derives its life and breath from the Directive
Principles of State Policy” and therefore must incorporate them to the fullest extent
possible.38 And it is one of the directives the State to raise the standard of living.
23. “Renounce practices derogatory to the dignity of women.”39This one of the fundamental
duties to which each and every citizen should abide by.

B. THAT THE OBLIGATION UNDER INTERNATIONAL CONVENTION.

24. CEDAW recognizes access to reproductive healthcare as a basic right, directing states
parties to ensure that women have “access to health care services, including those related
to family planning,” “appropriate services in connection with pregnancy, confinement and
the post-natal period,” and “adequate nutrition during pregnancy and lactation.40United
Nations (UN) treaty monitoring bodies and experts have called on states to abolish barriers
to abortion access.41

37
Press Trust of India, After Max Hospital Death, IMA Issues Guidelines on Foetal Viability, December 15, 2017,
available at https://www.hindustantimes.com/india-news/after-max-hospital-death-ima-issues-guidelines-on-
fetalviability/story-lssbGQN0lHoQD3VGNxLW4O.html(Last visited on 17th Nov, 2021)
38
Center for Reproductive Rights, LITIGATING REPRODUCTIVE RIGHTS: Using Public Interest Litigation and
International Law to Promote Gender Justice in India, ISBN: 1-890671-34-7, 2006
39
Art 51A of the Constitution of India, 1950
40
Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, G.A. Res.
34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/46 (1979)
41
CEDAW, General Recommendation No. 33 on Women’s Access to Justice, ¶ 25(c), (61st Sess., 2015), U.N. Doc.
CEDAW/C/GC/33 (2015)

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25. “International instruments cast an obligation on the Indian state to gender sensitize its
laws, and the Courts are under an obligation to see that the message of the international
instruments is not allowed to be drowned.”42
26. Thus, the government is legally bound to respect, protect, and fulfill women’s reproductive
rights pursuant to numerous international conventions that it has ratified.43

42
Apparel Export Promotion Council v. Chopra, (1999) 1 S.C.R. 117
43
Center for Reproductive Rights, Supra Note 41

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 ~2nd NLIU-LAC (Legal Aid Clinic) PIL Drafting Competition~ TC-08

PRAYER

In light of the facts stated, issues raised, arguments advanced and authorities cited, it is most
humbly and respectfully prayed before the Hon’ble Supreme Court of India that it may be pleased
to: -

1. Pass a writ of mandamus or any other writ or order or direction: -

A. To declare Sec 312 of IPC as unconstitutional.
B. Against Respondent 1 to constitute a high-level committee to assess the abortion laws and
impact of these laws on women.
C. Against Respondents 1, 2 & 3 to work together and devise a mechanism through which a
proper and safe reproductive and sexual health care is available to all women.
D. Against Respondent No.1 to formulate a proper periodic reporting mechanism to ensure
proper implementation of Right to bodily integrity, health and sexual autonomy of women.
E. Against respondents 2, 3 & 4 to formulate certain directions incentivizing and educating
women on sexual and reproductive health and family planning.
2. Pass any other order or direction that the Hon’ble Supreme Court may deem fit and proper
in the interests of justice, equity and good conscience.

Date: 20th Nov, 2021 Counsel for Petitioner

Place: New Delhi

……………………………………. Sd/-

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