MEMORIAL ON BEHALF OF PETITIONER

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

PETITION NO.: ___/ 2022

UNDER ARTICLE 13 & 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

NIKHIL SINHA………………………………………………………..

(PETITIONER)

VERSUS

THE STATE OF M.P.& OTHERS……………………………………………

(RESPONDENTS)

BEFORE THE HON’BLE CHIEF JUSTICE OF INDIA AND COMPANION JUSTICE OF

SUPREME COURT OF INDIA

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TABLE OF CONTENTS

INDEX OF AUTHORITIES...................................................................................................3-4

I. BOOKS REFERRED: ................................................................................................3

II. ONLINE SOURCE REFERRED…………………………………………………..3
III. STATUTES REFERRED: ..........................................................................................3
IV. TABLE OF CASES: ...................................................................................................4

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

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

ISSUES RAISED .....................................................................................................................7

SUMMARY OF ARGUMENTS .........................................................................................8-10

ARGUMENTS ADVANCED ..........................................................................................11-17

1. THE PETITION IS MAINTAINABLE BEFORE THIS HON’BLE COURT ..................11

2. THE NEW GENETICS DATA ACT, 2021 IS UNCONSTITUTIONAL………….....12-14

3. THE TERMINATION OF PREGNANCY OF TANYA IS UNLAWFUL…………15-17

PRAYER .................................................................................................................................18

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INDEX OF AUTHORITIES

LIST OF BO O K S

o Durgadas basu, constitutional law of India (wadhwa & company New Delhi, 2008).
o M.P. Jain, Indian constitutional law (wadhwa & company Nagpur 2010).
o V.N. shukl, constitution of India (eastern book company new Delhi 2009).

LIST OF ON L I N E SO U R C E S

o www.indiankanoon.com
o www.casemine.com
o www.sco.com
o www.unilexlegal.com

LIST OF ST A T U T E S RE F E R R E D

o The Constitution of India, 1950

o Medical Termination of Pregnancy Act, 1971
o Indian Penal Code, 1860
o Indian evidence act, 1872

LIST OF CASES

1. Peoples Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473.
2. Judges Transfer Case, A.I.R. 1982 S.C. 149.
3. Nikita Mehta v. State of Maharashtra
4. Jairaj Shah Case
5. Roe v. Wade, 410 U.S. 113 (1973).
6. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.

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7. Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946.

8. P. Rathinam v. Union of India, A.I.R. 1994 S.C. 1844: (1994) 3 S.C.C. 394.
9. M.S. Dubal v. State of Maharashtra, 1987 Cri. L. J. 743 (Bom.).
10. Naresh Marotrao Sakhre v. Union of India, 1995 Cri. L. J. 96 (Bom.).
11. Pritam Singh v. The State, A.I.R. 1950 S.C. 169: 1950 S.C.R. 453.

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STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the petition filed before this honorable
court. The petition invokes its jurisdiction under article 13 and 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. The present petition filed against the state passed the act New Genetics Data Act,
2021 and Tanya, who undergo abortion in compliance to the New Genetic Data act,
2021.
2. Tanya Basu was married to Nikhil Sinha in 2018 and was working as a journalist
with the Indian express in INDORE. She was very bold and free-minded lady and
would always support and assert for the independence of the women.
3. Nikhil always wanted to have child but Tanya was not very keen. She got her
pregnancy terminated twice, because of which there use to be lot of tension between
the two.
4. In 2022 She during her second month of pregnancy, she went to Ashoka Hospital for
the routine check-up. Doctor has insisted for some genetical tests and told her that it is
compulsory under the New Genetics Data Act passed by the State Legislative
Assembly in 2021.
5. The Genetics Data Act, 2021 lays down that all embryos in the human womb are to be
genetically tested to find out the predisposition to the disease. The Act further lays
down if after the test if it is proved that child has predisposition to disease like
Cancer, Huntington’s etc it has to be aborted. The Act says that this is in order to
improve the healthy human beings and to avoid the huge medical expenses in future,
as state was also providing funds to the hospitals to take care of children with deadly
genetic diseases such Act was passed.
6. Her reports suggest that her child might have some genetic disease, which was not
clear during the second month, but things would clarify only after third month of
pregnancy. Doctors also assured that chances of this happening (child might have
some genetics disease) were very less. She again got her pregnancy terminated.
7. Nikhil challenged the constitutional validity of the Act in Supreme Court.

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ISSUES RAISED

1. WHETHER THE PETITION FILED BY THE PETITIONER IS MAINTAINABLE?

2. WHETHER THE NEW GENETICS DATA ACT, 2021 IS UNCONSTITUTIONAL?

3. WHETHER THE TERMINATION OF PREGNANCY OF TANYA IS UNLAWFUL?

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SUMMARY OF ARGUMENT

ISSUE: I.

THE WRIT FILED BEFORE THE HONORABLE SUPREME COURT IS

MAINTAINABLE.

The writ petition filed by the petitioner is maintainable. Firstly; under Article 32 of the
constitution of India provides to all its citizen’s constitutional remedies and every citizen has
a right to move to the Supreme Court for the protection of their fundamental rights. Secondly;
fundamental rights of the representative of people where infringed by the GENETIC DATA
ACT, 2021 is also ultra-virus in view of the constitution. Article 13 also states that any act
inconsistent with the constitution shall be declare void. Therefore the petition will be
maintainable on this regard. Thirdly; the constitutionality of the act cannot be challenged in
any other court. According to the constitutional provisions the petition is maintainable on the
basis of violation of the fundamental rights as well as ultra- virus of the constitution.

ISSUE: 2

THE NEW GENETICS DATA ACT, 2021 IS UNCONSTITUTIONAL.

Article 13 of constitution of India, 1970

Laws inconsistent with or in derogation of the fundamental rights:

1. All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of Fundamental
Rights, shall, to the extent of such inconsistency, be void.
2. The State shall not make any law which takes away or abridges the rights conferred
by Fundamental Rights and any law made in contravention of this clause shall, to the
extent of the contravention, be void.

Who can challenge the constitutionality of a law?

 Person whose rights are directly affected by law.

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 Person who have sustained or immediately in danger of sustaining some direct injury
as a result of enforcement of the statute

The article specifically says that any person whose fundamental rights are violated
can seek the remedy. The new genetics data act, 2021 have made with the motive
That all embryos in the human womb are to be genetically tested to find out the
predisposition to the disease. The Act further lays down if after the test if it is proved
that child has predisposition to disease like Cancer, Huntington’s etc it has to be
aborted. The Act says that this is in order to improve the healthy human beings and to
avoid the huge medical expenses in future, as state was also providing funds to the
hospitals to take care of children with deadly genetic diseases such Act was passed.
As the sole object of the act is that in order to avoid heavy expenses for the treatment
of the unborn child it make mandatory provision to aborted the child which is against
the right to full development of the unborn child .also as per the directive principals of
state policy of the constitution the act of the state is to do welfare of the state not to
infringe the right of its citizens. The act effects not only the right of the unborn child
as well as of their parents. It is against the fundemtal rights of the person under article
21: Right to Life and article 14 Right to equality.

ISSUE: 3
THE TERMINATION OF PREGNANCY OF TANYA IS UNLAWFUL
SECTION 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 registered
medical practitioner,-
(a) When the length of the pregnancy does not exceed twelve weeks if such medical
practitioner is, or
(b) When the length of the pregnancy exceeds twelve weeks but does not exceed twenty
weeks, if not less than two registered medical practitioners are, of opinion, formed in good
faith, that-
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(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 Tanya the doctor in their report
recommended that there is very less chances of child having any serious disease also it would
not hamper the health of the Tanya nor she will face any problem to conceive in future.
Aborting the child only because he will be just less than perfect is not justifiable & thus, the
act of Tanya is unlawful against the MTPA act 1976.

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ARGUMENT ADVANCED

ISSUE: 1. THE PRESENT PETITION OF PETITIONER UNDER ARTICLE 13&32

OF CONSTITUTION IS MAINTAIABLE

1. The petitioner files the instant petition under Art. 13 & 32 in the Hon‟ble Supreme Court.
[1.1] PETITIONER HAS LOCUS STANDI IN THE INSTANT CASE.
It is humbly submitted that maintainability of writ petition for enforcement of
Fundamental rights can be questioned only on the ground of laches, delays and
Acquiescence, drafting1 of petition in an undignified manner, malicious in nature, where
Disputed question of facts are involved or question of law has been raised in the abstract or
Enforcement of private or contractual rights are sought to be enforced. In the instant case,
None of the aforementioned exceptions exist 2. The petition has been filed in time, question of
Facts are involved and fundamental rights are sought to be enforced. The impugned Act
comes with the preview of the power conferred by the constitution to the state 3. Therefore,
the Hon‟ble Supreme court is competent to decide the legality of the circular under Art. 32.
[1.2] BASIC STRUCTURE OF THE CONSTITUTION HAS BEEN VIOLATED.
It is submitted that Part III of the Constitution which deals with “Fundamental rights” is
Regarding as the basic structure of the Constitution. The doctrine of basic structure not only
Applies against the amendments under the exercise of constituent power but also against
Exercise of legislative and executive power4. Therefore, the said rule is within the ambit of
the court under article 13 power to judicial review of the act.

1. Peoples Union for Democratic Rights v. Union of India, A.I.R. 1982 S.C. 1473.
2. Judges Transfer Case, A.I.R. 1982 S.C. 149.
3. Nikita Mehta v. State of Maharashtra
4. Jairaj Shah Case

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ISSUE 2 THE NEW GENETICS DATA ACT, 2021 IS UNCONSTITUTIONAL, IT

VIOLETS THE FUNDAMENTAL RIGHTS

[2.1]Nikita Mehta v. State of Maharashtra.

Terminating the life of a viable unborn on grounds of possible handicap is akin to mercy
killing. We also need to consider whether a further extension would lead to 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 little5 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 6 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 babies7 ? The next issue is the precise
determination of what constitutes a malformation & what may be termed as a severe mental
or physical deformity. With the growth of science & medicine newer conditions are being
described as diseases or deformities. At the same time, new cures are also emerging. So what
needs to be viewed as a handicap8 & what need not becomes important. Let us not forget those people
who despite being severely handicapped have made outstanding contributions to society, for
example Dr. Stephen Hawking, the world renowned scientist who suffers from extremely
debilitating motor neuron disease & Ludwig van Beethoven, one of the greatest music
composers of all times despite his deafness. At that time, had there been mechanisms to
detect such disabilities in the fetus, these people may never have been born9. In other words,
We cannot completely ignore the possibility of committing grave mistakes by extinguishing
potentially great life with our limited understanding of the future & our exaggerated fear of
deformity. Advancement in medical science bestows great power on humanity that must be
used for noble causes.

5. Roe v. Wade, 410 U.S. 113 (1973).

6. Suchita Srivastava v. Chandigarh Administration, (2009) 9 SSC 1.
7. Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946.
8. P. Rathinam v. Union of India, A.I.R. 1994 S.C. 1844: (1994) 3 S.C.C. 394.
9. M.S. Dubal v. State of Maharashtra, 1987 Cri. L. J. 743

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Unfettered or arbitrary misuse of such power may lead to grave consequences for the society
on multiple fronts. Indian constitution says every person in India has 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 dependant 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, thus
hence of its survival upon birth become bright. Thus, in addition to state interest, the interests
of the fully formed unborn child at this stage become noteworthy. The unborn find explicit
or implicit protection through many international & national laws. The United Nations
Convention on the Rights of the Child recognized the need for special protection of children
before & after birth on account of their physical & mental immaturity .In this case, the
appellant wants abortion but only because the child to be born will born with a hole in heart.
A person with a hole in heart can live normal life. Now-a-days after a surgery, a pacemaker
can be planted in the heart, battery of which lasts for 10 years & after 10 years again one has to
undergo surgery. I give an example of a case10: Jairaj Shah was staying at Juhu in Mumbai with his
wife, Harina, had the same problem in1972, but they decided to give birth to the child.
Doctors estimated expenses of surgery was estimated to 1.50 Lacs at that time (1971). Family
of Jairaj & Harina gave them some money some religious trusts also donated the
remaining amount. When the child turned 10, he was operated & pacemaker was kept in the
heart. Now the child is 36 years old & is healthy. Many people don't realize that abortion is
actually very dangerous procedure.11

10. Jairaj Shah Case

11. Naresh Marotrao Sakhre v. Union of India, 1995 Cri. L. J. 96 (Bom.).

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The expert committee were against the abortion from which we can derive that if abortion
would have took place then there might have been risk to the life of appellant or some minor
risks. Here, they know with what problem, their child will born. What if the same problem
may be detected after the birth? Even if we keep legal issue aside, morally too, they should
not go for abortion. And challenging the validity of § 3(2) of the MTPA is in no way
justifiable.
From the above arguments we can understand that how harmful abortion for awomen , a
state have to make acts which is for the welfare of the citizen but not to harm them and we
also see many examples of the people who have some serious dieases,they succeed not only
to survive but done immense wonderful work for the so called a normal dieses free healthy
persons .the act not only deprive the unborn child to come into existence but also put the life
of the women who undergo abortion which is against its right to health under article 21.

[2.2] Stating unborn as non-natural but legal person is not the end of issues related to them.
Constitution grants every person right to property and right to life and personal liberty. Like
companies and corporations, any non-natural but legal person has right to equality before law
and right to have equal protection of law. Here the question is, does unborn has right to life
because we have seen that there is a potential life and in any case, law is not refusing to
accept the existence of that form of life. Well the answer is it has right to life. However, this
right is been provided to them in a different manner. This right is Right to full development
which is similar to rights, like right to have pollution free water and air and right to have
reasonable residence, which are recognized under right to life.12Right to full development and
right to have safeguard are well-recognized rights under international law13. The American
Declaration of the Rights and Duties of Man has excluded fetus from right to life. Third
paragraph of preamble to the 1959 UN Declaration on Rights of the Child is a proof of right
to have protection before and as well as after birth. The declaration is not binding in nature as
well as it is a soft international law.14

12. Article 21, constitution of India.

13. The American Declaration of Rights
14. UN Declaration of rights, 1959

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The child, by reason of his physical and mental immaturity, needs special safeguards and
care, The determination whether at preconception stage or otherwise is the denial of a child,
the right to expansion, or if it can be so expanded right to come into existence. The enactment
proposes to control and ban the use of sex selection technique 15 both prior to conception as
well as its misuse after conception and it does not totally ban these procedures or tests. The
conception is a physical phenomena. It need not take place on copulation of every capable
male and female. Even if both are competent and healthy to give birth to a child, conception
need not necessarily follow. That being a factual medical position claiming of right to choose
the sex of a child which is come into existence as a right to do or not to do something which
cannot be called a right 16. The right to personal liberty cannot expand by any stretch of
imagination to liberty to prohibit coming into existence of a female fetus or male fetus, which
shall be for the Nature to decide. Right to bring into existence a life in future with a choice to
determine the sex of that life cannot in itself to be a right. In determining the present case to
test the sex of the unborn child, the Apex court somehow consider the RIGHT TO LIFE of
the unborn child, which can’t curtail on the mare ground of the sex of the defense less unborn
child, which applied to the NEW GENETICS DATA ACT, 2021 also only because the child
is not the healthy child like all other normal babies the state can’t denies it to being born and
exercise its right to life. Thus, an unborn being has right to full development, which is
equivalent to right to life.
[2.3]In the present case17, a PIL was filed by the social activist against various practices
adopted by the state governments pertaining to the mass sterilization of both males and
females. It was found that in various cases; even the consent of the patient undergoing
sterilization was absent. It was also found that these procedures were being conducted in
dangerous and unsanitary sterilization camps. The issue before the court was to decide the
validity and rightfulness of this practice of the government in pursuance of the fundamental
rights enshrined in the Constitution.

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

16. Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946.
17.Devika Biswas v. Union of India (2016)

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Judgment of the Court The Apex Court, while adjudicating and considering all the
facts, held that such a practice of sterilization is violative of Article 21, thereby stating
that a person has a right to reproductive choice and that it falls within the ambit of
Article 21. The state can’t decide that the citizen will remains or get terminated their
child having disabilities it is their choice to have a child or not any act against their
right is violation of their right under article 21.

ISSUE 3 THE TERMINATION OF PREGNANCY OF TANYA IS UNLAWFUL

[3.1]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 weeks17 of gestation but where the period is between twelve to
twenty weeks18, 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. In this case19has given rise to a raging debate on abortion laws in the country. In this
case the gestational period had progressed much beyond the prescribed period & was past
twenty five weeks. The petitioners pleaded that the defect in the heart of the unborn child was
detected at a late stage. The Mumbai high court held that no categorical opinion of experts
had emerged to state that the child would be born with serious handicaps. The court thus
denied recourse to medical termination of the pregnancy & an opinion emerged that 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.

17. After Amendment Of 2019 Substituted By 20 Weeks

18.2019 Amendment Of MTPA Substituted 20 To 24 Weeks
19. Nikita Mehta Case, 2017

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[3.2]Abortion Is Violation of Fetus's Right to Life

Medicinal and scientific research has demonstrated that life starts at origin. In this way,
premature birth is like to kill, as it is the demonstration of taking human life. Fetus removal is
an immediate noncompliance of the ordinarily acknowledged thought of the holiness of
human life. No acculturated social orders the world over license an individual to purposefully
harm or end the life20 of someone else. Such a demonstration is offense all over the place and
is culpable. Premature birth is not a special case or not quite the same as this general
guideline. The procedure of premature birth is only ending the life of an individual.
Therefore, such a demonstration of ending the life of an individual ought not to be allowed.
[3.3] A mother cannot guarantee:
It is my body and completely my decision21". Instead of that the fact that fetus is an
individual, he/she has the privilege to life. As per master life advocates, Mother's activity
ought not to be an encroached the privilege of the embryo because, the privilege to life is the
preeminent ideal for a person22. Feasibility, nevertheless, is anything but a helpful idea in the
feticide setting. Practicality happens at various focuses in various pregnancies and requires
therapeutic ability to analyze. With the exception of in the absolute last phases of pregnancy,
no one other than a doctor could be relied upon to realize the baby is feasible. The hatchling's
life intrigue still warrants the state's security under these conditions, and the undesirable end
of the pregnancy must be independently perceived and vindicated. The act of Tanya of
Terminating the pregnancy not only once but three times without having sufficient cause to
support her act is not justifiable at all.

20. M.S. Dubal v. State of Maharashtra, 1987 Cri. L. J. 743 (Bom.).

21. Naresh Marotrao Sakhre v. Union of India, 1995 Cri. L. J. 96 (Bom.).
22. Pritam Singh v. The State, A.I.R. 1950 S.C. 169: 1950 S.C.R. 453.
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PRAYER FOR RELIEF

In light of the issues raised, arguments advances and authorities cited the council for the
petitioner humbly pray’s the Honorable court be pleased to adjudge, hold & declare:

1. That the writ filled is maintainable in the court of law.

2. That The Genetics Data Act, 2021 passed by the State Legislative Assembly is
unconstitutional.
3. That the act of. Tanya is unlawful against the section 3 of medical termination of
pregnancy act 1976.

And pass any order that this Honorable court may deem fit in the interest of equity and
justice

And for this act of kindness, the council for the petitioner shall duty bound forever pray.

S.d.-

(council for petitioner)

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