BEFORE THE HON’BL SUPREME COURT

W.P. NO. /2024

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA)

IN THE MATTER OF

AMANDA …PETITIONER

VS

UNIION OF INDIA …RESPONDENT

HUMBLY SUBMITTED BEFORE THIS HON’BLE SUPREME

COURT

COUNSEL FOR THE RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................3

STATEMENT OF JURISDICTION............................................................................................5

STATEMENT OF FACTS...........................................................................................................6

STATEMENT OF ISSUES.........................................................................................................8

SUMMARY OF ARGUMENTS..................................................................................................9

ARGUMENTS ADVANCED…................................................................................................11

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?11
2. WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION
3(2) OF THE MEDICAL TERMINATION OF PREGNANCY ACT, 1971 IS
JUSTIFIABLE?.........................................................................................................…..14
3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN
UNBORNCHILD?.........................................................................................................16
4. PRAYER........................................................................................................................17

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INDEX OF AUTHORITIES

STATUTES:

1) Criminal Procedure, 1973 (Act No. 2 of 1974)2)

2) The Indian Evidence Act, 1872 (Act no. 1 of 1872)3)
3) The Medical Termination Of Pregnancy Act, 1971. (Act No. 34 of 1971)4)
4) The Indian Penal Code. (45 of 1860)5)
5) Transfer of Property Act, 1882

BOOKS:

1) Black’s Law Dictionary

2) Basu, D., Lakshmanan, A., Manohar, V., Banerjee, B. and Khan, S. (2009).Shorter constitution
of India
3) Penal law of India, Dr Sir Hari Singh Gour, 11th Edition.
4) Law and Medicine, Dr Lily Srivastava, 2nd Edition.
5) Dagmar K. Kalousek and Naomi Fitch, Pathology of the Human Embryo and Previable Fetus, 1 st
Edition.
6) Amar Jesani, and Aditi Iyer, "Women and Abortion", 27 Economic and Political Weekly (1993)
7) P.M. Bakshi and Gunjan Shah – Abortion social ethical and legal issues monograh Vol. 1 page
117 Tilem – NLSIU Bangalore
8) Shaw S.P., Encyclopedia of Laws of Child in India, 2nd Edition.
9) Grabowski Andrzej, Juristic Concept of the Validity of Statutory Law 2nd Edition.
10) Centers for Disease Control (CDC), Abortion Surveillance, Annual Summary, 1969.

WEBSITES:

 www.scconline.com

 www.heinonline.com

 www.manupatra.com

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 www.indiankanoon.com

 www.casemine.com

CASES:

 Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.

 Roe Vs Wade, 410 U.S. 113 (1973).
 Queen Empress V Ademmia, 1886 ILR 9 MAD 360.
 Dietric v. Northampton, 138 Mass 44, 52 Am. Resp. 242.

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STATEMENT OF JURISDICTION

The Counsel on behalf of the Respondent humbly submits this memorandum before this
honorable Supreme court. The petition invokes its write jurisdiction under article 32 of the
constitution of India. It sets forth the facts and the laws on which the claims are based.

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STATEMENT OF FACTS

1. Indica is a democratic country situated in south east of Asia. The current population
stands at approximately 1.43 billion people as of 2023 making it the second most populous country
in the world. In 2023, the sex ratio of the total population in Indica is 106.516 males per 100
females. The country has implemented over the years many progressive gender-based laws and are
continuously evolving to address the changing needs and challenges faced by women and other
marginalized genders.
2. Amanda and Adarsh have been college sweethearts and have been living together since
2019 in the state of Kavalam, a state in the union of Indica. They are both strongly against the
institution of marriage and decided to never get married. After several years of relationship Amanda
became pregnant in November, 2023. Initially they both were excited about the pregnancy and
welcomed the baby. But later in February 2024 Amanda came to know that Adarsh has been
cheating on her with his colleague for the past 3 years. Amanda being heartbroken by this news
decided to part ways with Adarsh. She also decided not to continue with the pregnancy as she does
not want to cherish any memory from the past relationship.
3. On 7th April 2024, Amanda visited Dr. Sharma’s clinic to get an abortion who was her
regular gynaecologist. But on examination, it was found that Amanda was 21 weeks pregnant on
the day and hence she was above the legally permissible period of abortion. Dr. Sharma, thus
declined to provide her any service, but he also being a family friend to Adarsh informed him about
Amanda’s visit.
4. On 11th April 2024, Amanda filed a writ application before the Hon’ble High Court of
Kavalam for granting permission to undergo medical termination of pregnancy. Adarsh, through
some close sources came to know about the petition, approached the High Court with an
intervening application. During the proceedings, Adarsh opposed to the abortion request claiming
to be the biological father and ready to accept all responsibilities of the mother and child. This was
objected by Amanda who stood by abortion on the ground that child birth in this case could cause
grave injury to her mental health as she did not want to parent the child of an unfaithful man who
has completely broken her trust. The single judge bench of the High Court dismissed the petition
saying that the petitioner did not satisfy any grounds provided in the Medical Termination of
Pregnancy Act, 1971.
5. The petitioner on 17th April 2024, appealed against the dismissal order passed before the
Division Bench. The Division Bench while upholding the dismissal order made the following

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statement about the appellant:

“Motherhood is an integral part of a woman’s existence. The unborn in this case was conceived out
of a consensual relationship between the major parents who belong to the educated and elite class
of society. The case of the appellant doesn’t cover under any mental health issues as she is not a
victim of sexual abuse. The foetus’s right to be born cannot be taken away by the mother merely on
her desires. In the instant case the alleged father of the unborn is ready to accept the responsibility
of the mother and child and more importantly as rightly pointed out by the learned judge, this case
doesn’t come under the ambit of the legal exception recognized under the Medical Termination of
Pregnancy Act, 1971. Hence the appeal is dismissed.”
6. Amanda, aggrieved by this order preferred a Writ petition before the Hon’ble Supreme
Court of Indica on 27 April, 2024 seeking termination of pregnancy as well as challenging the
provisions of MTP Act as violative of the fundamental right of women to make reproductive
choices and to declare right to abortion a fundamental right.

Note: The Laws of Indica are pari materia to the laws of India.

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STATEMENT OF ISSUE

ISSUE 1:

WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A PERSON

TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?

ISSUE 2:

WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF SECTION

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

ISSUE 3:

WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?

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SUMMARY OF ARGUMENTS

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF
INDICA?

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

2. WHETHER THE CHALLENGING OF CONSTITUTIONAL

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

§ 3 of MTPA state that – When pregnancies may be terminated by registered medical practitioners-
(1) Notwithstanding anything contained in the IPC (45 of 1860), a registered medical
practitioner shall not be guilty of any offence under that code or under any law for the time being in
force, if any pregnancy is terminated by him in accordance with the provision of this act.
(2) Subject to the provision of sub § (4), a pregnancy may be terminated by a registered
medical practitioner,-
(a) When the length of the pregnancy does not exceed twelve weeks if such medical
practitioner is, or
(b) When the length of the pregnancy exceeds twelve weeks but does not exceed
twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in
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good faith, that-

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant
woman or of grave injury to her physical or mental health; or
(ii) There is a substantial risk that if the child born, it would suffer from such
physical or mental abnormalities to be seriously handicapped. In this case after the
medical examination of the appellant the expert committee in their report
recommended against abortion of the fetus at such an advanced stage of pregnancy
since the child would be capable of leading a normal life with the assistance of an
artificial pace maker, also it would not hamper the health of the appellant nor she
will face any problem to conceive in future. And aborting at such an advanced stage
may put the life of the appellant at risk, as abortion is a risky process and it has many
side-effects also baby become viable at this stage. Aborting the child only because
he will be just less than perfect is not justifiable & thus, challenging the validity of §
3(2) of the MTPA too is in no way justifiable.

3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?.

The State is under obligation under Article 21 not only to protect the life of the unborn
child from arbitrary and unjust destruction but also not to deny it equal protection under article
14 of the Indian constitution. But the MTP violates both the Articles by allowing the
termination of pregnancy in various situations.

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ARGUMENTS ADVANCED

1. WHETHER IS THERE ANY VIOLATION OF FUNDAMENTAL RIGHT OF A

PERSON TO LIFE UNDER ARTICLE 21 OF THE CONSTITUTION OF INDICA?

It is humbly submitted before the Hon'ble Court that there is no violation of fundamental
right of a person to life whatsoever under Art 211 of the Constitution of India of the appellant.

The Art. 21 of Indian constitution provide right to life & right to privacy & The Art. 6(1)
of the International Covenant on Civil & Political Rights prohibits the arbitrary deprivation of
life. But there are some controversial issues related to this supreme right. One such issue is the
question of Right to abortion. Among other rights of women, it is believed that every mother has
a right to abortion, it is a universal right. But the rights of the mother are to be balanced with the
rights of the unborn. Earlier the right to abortion was not permitted & it was strongly opposed by
the society. The termination of pregnancy was termed to be a murder of the fetus. But due to the
change in time & technology, nowadays this right has been legally sanctioned by most of the
nations after the famous decision of Roe Vs Wade 2 by the US Supreme Court in this case the
Court held that a mother may abort her pregnancy for any reason, up until the "point at which the
fetus becomes 'viable". In the case of Suchita Srivastava 3, the Court held that there is no doubt
that a woman's right to make reproductive choices is also a dimension of "personal liberty" as
understood under Art. 21 of the Constitution of India. But there is also a "compelling State
Interest" in protecting the life of the prospective child and, therefore the termination of the
pregnancy could only be permitted under the condition specified in the MTPA, 1971 which are
to be viewed as reasonable restrictions placed on the exercise of reproductive choices.

§ 3 of the MTP Act said that pregnancy can be terminated if:

# Therapeutic indication: in order to prevent injury to the physical or mental health of the
woman.

# Eugenic indication: in view of the substantial risk that if the child were born, it would
suffer from such physical or mental abnormalities as to seriously handicap.

1
Article 21 lays down that no person shall be deprived of his life or personal liberty except according to 'procedure
established by law'.
2
410 U.S. 113 (1973).
3
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.

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# Humanitarian indication: as the pregnancy is alleged by a pregnant woman to have been

caused by rape.

# Social indication: as the pregnancy has occurred as result of failure of any contraceptive
device or method used by married woman or her husband for the purpose of limiting the number
of children.

# The continuance of the pregnancy would involve risk, greater than if the pregnancy were
terminated, of injury to the physical or mental health of the pregnant woman.

# The termination of pregnancy is to be carried out in a government hospital or at a place

approved by the government & two medical practitioners are necessary if the pregnancy is more
than 12 weeks but less than 20 weeks duration; for less than 12 weeks one medical practitioner
can terminate it.

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

I would like to highlight again the examples of Dr. Stephen Hawking, the world renowned
scientist who suffers from extremely debilitating motor neuron disease & Ludwig van
Beethoven, one of the greatest music composers of all times. If at that time, had there been
mechanisms to detect such disabilities in the fetus, these people may never have been born. And
in this case as already mentioned the child is capable of leading a normal life.

Isn’t it violating the provisions of Art. 14 4 of the Constitution of India? Won’t it lead to
any discrimination? The child have every right to live & we must consider the rights of the

4
Article 14 outlaws discrimination & guarantees equality before law to all persons. It embodies the principle of
“non - discrimination”.

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unborn who are defenseless individuals incapable of taking decisions or making informed
choices about their right to life. Art 14 bars discrimination & prohibits discriminatory laws. And
decision in favor of abortion will lead to discrimination to this child. Our law protects the rights
of unborn child& of disabled too. Like § 20 5 of the Hindu Succession Act, 1956, § 13 6 & § 207
Transfer Of Property Act, 1882 and § 6 8 of the Limitation Act, 1963 recognizes the rights of a
child in the womb.

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

5
A child who was in the womb at the time of the death of an intestate & who is subsequently born alive shall have the
same right to inherit to the intestate as if he or she had been born, before the death of the intestate, &the inheritance
shall be deemed to vest in such a case with effect from the date of the death of the intestate.
6
Transfer for benefit of unborn person. - Where, on a transfer of property, an interest therein is created for the benefit
of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest
created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the
transferor in the property.
7
When unborn person acquires vested interest on transfer for his benefit.- Where, on a transfer of property, an interest
therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention
appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof
immediately on his birth.
8
Where a person entitled to institute a suit or make an application for execution of the decree is, at the time from which
the prescribed period is to be reckoned, a minor, he may institute the suit or make the application within the same
period after the disability has ceased. Explanation to § 6 reads thus: “For the purpose of this section, minor‟ includes a
child in the womb”.

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2.WHETHER THE CHALLENGING OF CONSTITUTIONAL VALIDITY OF

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

It is humbly submitted before the Hon’ble Court that challenging the constitutional validity
of Sec 3(2) of the Medical Termination of Pregnancy Act, 1971 is not justifiable. Section 312 9 of
the Indian Penal Code read with the Medical termination of Pregnancy act, 1971where all the
restrictions imposed therein, including the time limit of 20 weeks, other than the ones to ensure
good medical conditions, infringe the right to abortion & the right to health, which emanate from
right to life as guaranteed by Art. 21 of the Constitution. Any law forbidding an abortion under
good medical conditions is immoral & in addition unconstitutional, for it violates her right to
control her property - her body as wells her life, liberty & happiness.
The MTPA, 1971 permits abortion to be performed only when the pregnancy poses a risk
to the life of the pregnant woman, or, of grave injury to her physical or mental health, or, when
there is a substantial risk of the child being born with physical or mental abnormalities so as to
be seriously handicapped. A registered medical practitioner may terminate the pregnancy up to
twelve weeks of gestation but where the period is between twelve to twenty weeks, the opinion
of two registered medical practitioners is required. The limit of twenty weeks maybe crossed
only when the procedure is performed to save the life of the woman. Importantly, pregnancy that
results from rape or failure of a contraceptive device between a married couples is viewed as
causing grave injury to the mental health of the woman.
We also need to consider whether a further extension would lead to a possibility of
obnoxious agreements between the woman, her family & the physician to terminate the
pregnancy if the baby is likely to be born less than perfect, even if such imperfection may be
accommodated with little effort & is not life threatening? It must be appreciated that a civilized
society & welfare state must consider the rights of the unborn who are defenseless individuals
incapable of taking decisions or making informed choices about their right to life. In fact the
state must act as its parent to step in & protect its life. The society certainly does not suggest
termination of the life of handicapped adults, then why must it take a harsh stand against
vulnerable individuals who are unborn babies?

9
Whoever voluntarily causes a woman with child to miscarry shall, if such miscarriage be not caused in good faith for
the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Indian constitution says every person in India has the right to live & no one can terminate
one's life without court's permission. Indian abortion law doesn't permit termination of
pregnancies after 20 weeks unless it is fatal to mother.
The next question that arises is why the cut-off must be marked at twenty weeks? The
answer lies in the fact that the baby becomes viable at this stage. In other words, the baby is no
longer indispensably dependent on its mother’s body & stands a chance of survival upon
delivery, albeit with suitable aids at this premature stage. As it grows, it becomes more &more
capable of independent survival & from seven months of gestation onwards, the chances of its
survival upon birth become bright.
Thus, in addition to state interest, the interests of the fully formed unborn child at this stage
become noteworthy. The unborn find explicit or implicit protection through many international
& national laws.

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3. WHETHER THAT THE MTP ACT VIOLATES THE RIGHT TO LIFE OF AN

UNBORNCHILD?

All forms MTP should not be abolished in India and mother should give enough
discretionary power to decide. Article 21 of the constitution does not absolutely defend the
rights of an unborn child. The Art. 6(1) of the International Covenant on Civil & Political
Rights10 prohibits the arbitrary deprivation of life and Art. 21 of the Constitution read as “No
person shall be deprived of his life or personal liberty except according to procedure established
by law” The expression procedure established by “procedure established by law” means
procedure laid down by statute or procedure prescribed by the law of the State. Sec 11 of the
Indian Penal Code includes an unborn child in its definition of persons only if its body is
sufficiently developed in its mother’s womb to call it a child. Nowhere in the whole of Art. 21 it
has been explicitly stated that the provision of the said Act extends to all unborn children. India
has borrowed the concept of fundamental right from U.S.A and therefore it is right to view the
scope of fundamental rights in India in light of American case laws.

In the famous decision of Roe Vs Wade 11 by the US Supreme Court in this case the Court
held that a mother may abort her pregnancy for any reason, up until the “point at which the fetus
becomes ‘viable’.

In Dietric v. Northampton12 it was held that “failing any precedent that conferred upon the
child a prenatal cause of action in tort, it was held that it was a clear and incontrovertible
principle of common law that the unborn child was not a ‘person’ under the law but a part of the
mother with no separate entity or existence before birth.” Reproductive rights are the natural
rights of women and are necessary for their health and well-being. The structurally forced
maternity is a perpetuation of economic, domestic and sexual equally, abortion is needed to
redress a woman’s basic lack of control over process of reproduction. Among other rights of
women, it is believed that every mother has a right to abortion, it is a universal right. But the
rights of the mother are to be balanced with the rights of theunborn.4.In the case of Suchita
Srivastava13, the Court held that there is no doubt that a woman’s right to make reproductive
choices is also a dimension of “personal liberty” as understood under Art. 21 of the Constitution
10
Article 6, International Covenant on Civil & Political Rights
11
supra
12
138 Mass 44, 52 Am. Resp. 242.
13
Supra

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of India. But there is also a “compelling State Interest” in protecting the life of the prospective
child and, therefore the termination of the pregnancy could only be permitted under the
condition specified in the MTPA, 1971 which are to be viewed as reasonable restrictions placed
on the exercise of reproductive choices.

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PRAYER

Wherefore, in light of the issues raised, arguments advanced, and authorities cited, it is humbly
prayed before the Hon’ble Supreme Court to adjudge & declare that:

- There no violation of fundamental right of a person to life under article 21 of the

constitution of Indica.
- The challenging of constitutional validity of section 3(2) of the medical termination of
pregnancy act, 1971 is not justifiable.
- The MTP act violates the right to life of an unborn child.

And/or pass any other order/orders as this Hon’ble Court deems fit and proper in the
circumstances of the given case and in the interest of Justice, Equity, and Good Conscience.

And for this act of kindness and justice the Respondent shall be duty bound and forever pray.

All of which is submitted with utmost reverence.

COUNSEL FOR THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT