ON BEHALF OF THE RESPONDENT

BEFORE THE HON’BLE SUPREME COURT OF INDIA

Writ Petition no. : ______ /2012

Ms. Sweta Tripati Petitioner

V/S

1 Union of India

Represented through Secretary

Ministry of Law and Justice

2 Union of India

Represented through Secretary

Ministry of Women and Child Welfare Respondents

ON THE SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

MEMORIALS FILED ON BEHALF OF THE

RESPONDENT
ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

CONTENT PAGES

A. INDEX OF AUTHORITIES
B. STATEMENT OF JURISDICTION
C. STATEMENT OF FACTS
D. STATEMENT OF ISSUES
E. ARGUMENTS ADVANCED
F. PRAYER
ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES

Books referred:

1. Constitution of India – M.P. Jain

2. Constitution of India – Shukla
3. Indian Penal Code - Mishra
4. Human Rights - Dr. H O Agarwal

Table of Cases:

1. Shrikishan Singh v. State of Rajasthan

2. State of Bombay v. Balsara F.N

3. Anukul Chandra Pradhan v. Union of India

4. B.K. Parthasarathi vs State of Andhra Pradesh

5. M. Durgaiah v. Agent, Tandur Colleries

6. P.K. Biswas v. Indian Institute of Chemical Biology

7. Singh v. State of Punjab

ON BEHALF OF THE RESPONDENT

Statement of Facts

1. Sweta Tripati, an Advocate practicing in the High Court of Karnataka, married to Rahul
Sadanandan, an Assistant Professor in Bannamma School of management studies
Bengaluru. After two months of marriage they decided to move to Flat close to the city
taking into the convenience of both.
2. As a practicing Advocate Sweta was workaholic and spends more time in law firm with
passing days relation between these two got strained. After five months of marriage the
situations got worst and due to the strained relation she was sent home by her husband.
3. Thereafter, he sent a notice through his advocate to Sweta demanding divorce. By that
time she was three and a half months pregnant and was under the treatment of Dr. Girirsh,
gynecologist, a far relative of Sweta. Three days after receipt of the notice, Sweta sought
advice from Doctor to go for abortion and the same was successfully done at medical
Trust Cooperative Clinic Mysore.
4. Aggrieved by the fact Rahul sought information from the hospital authorities under RTI
Act. Based on the records received Rahul files a compliant before the Judicial Magistrate
First Class, Mysore against Sweta and Girish.
5. During the pendency of proceedings Sweta approached the High Court U/S 482 of CrPC
to quash FIR and to stop proceedings therewith. But the petition was dismissed by the
High Court.
6. Aggrieved by this Sweta approached Hon’ble Supreme Court of India through SLP. She
also filed Writ petition contending that the position retained by Indian Law in relation to
reproductive rights of a woman and termination of pregnancy is against woman’s right to
reproductive autonomy. In addition she also challenges the act of hospital authorities in
disclosing information is violation of her Right to privacy.
7. NGO named CRIPA dedicated to protection of child rights sought permission of Supreme
Court to implead in the Writ petition claiming that the position retained in the IPC and
other law related to reproductive rights of women not to be held unconstitutional.
8. Leave was granted by the Supreme Court and directed to be heard along with Writ
Petition and placed before Constitutional Bench.
ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION

This Writ Petition is filed before this Hon’ble Supreme Court of India, in reply to the petition

filed by the petitioner, invoking the Writ jurisdiction under Article 32(1) of the Indian

Constitution which conferred right to approach Supreme Court as a matter of right when

there is a violation of the rights conferred under Part III of the Indian Constitution.
ON BEHALF OF THE RESPONDENT

ISSUES RAISED

1. Whether reproductive rights and right abortion is unconstitutional?

2. Whether the act of the hospital authorities is infringement of right to privacy
3. Whether unborn child in the mother’s womb has a fundamental right to life?
ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED

ISSUE No. 1

1. Whether reproductive rights of women are unconstitutional?

The respondent respectfully submits as under:-

No. Reproductive rights of women are not unconstitutional.

According to UNFPA United Nation Population Fund, reproductive rights includes
1. Reproductive health as a component of overall health, throughout the life cycle, for both
men and women
2. Reproductive decision-making, including voluntary choice in marriage, family formation
and determination of the number, timing and spacing of one's children and the right to
have access to the information and means needed to exercise voluntary choice
3. Equality and equity for men and women, to enable individuals to make free and informed
choices in all spheres of life, free from discrimination based on gender
4. Sexual and reproductive security, including freedom from sexual violence and coercion,
and the right to privacy.

The killing of innocent is a crime and the fetus is also an innocent life. Embryo or fetus is a
human being entitled to protection, from the moment of conception and therefore has a right to
life that must be respected.
ON BEHALF OF THE RESPONDENT

According to Article 21 of the Indian Constitution “No person shall be deprived of his life
and personal liberty except according to procedure established by law”.

Medical Termination of Pregnancy Act prescribes the procedure for termination of a child.
Medical Termination of Pregnancy Act is constitutionally valid. Article 14 does not prohibit
reasonable classification. It is clear that men and women do not fall under the same category
when it comes to pregnancy. Therefore, that Act is not arbitrary either. Article 21 and the Right to
Privacy are not infringed as the act clearly provides three grounds on which termination can take
place, viz., on humanitarian grounds, as a health measure and on eugenic grounds. The procedure
established by law is a reasonable restriction on Article 21. International covenants are majorly
in consonance with the Indian Law regarding the issue of Medical Termination of Pregnancy.
The Medical Termination of Pregnancy Act (hereinafter referred to as the MTP Act) is
constitutionally valid.
The concept of equality and equal protection of laws guaranteed by Article 14 in its
proper spectrum encompasses social and economic justice in a political democracy. Shrikishan
Singh v. State of Rajasthan1 it was held that, Equal protection means the right to equal
treatment in similar circumstances, both in the privileges conferred and in the liabilities imposed.
However, the principle of equality does not mean that every law must have universal application
for all persons who are not by nature, attainment or circumstances in the same position, as the
varying needs of different classes of persons often require separate treatment. It would be
inexpedient and incorrect to think that all laws have to be made uniformly applicable to all
people in one go.

In State of Bombay v. Balsara F.N2. it was held that the principle enshrined in Article 14
does not take away from the state the power of classifying persons for legitimate purposes.

In Anukul Chandra Pradhan v. Union of India 3 it was held that the legislature is
competent to exercise its discretion and make classification. Every classification is in some
degree likely to produce some inequality. Differential treatment does not per se constitute

1
1955 (2) SCR 531
2
1951 SCR 682
3
(1997) 6 SCC 1
ON BEHALF OF THE RESPONDENT

violation of Art. 14. It denies equal protection only when there is no reasonable basis for the
differentiation.

"B.K. Parthasarathi vs. State of Andhra Pradesh 4 it was held that: “The right to make
a decision about reproduction is essentially a very personal decision either on the part of the men
or women.
The object of the Act being to save the life of the pregnant woman or relieve her of any
injury to her physical and mental health, and no other thing, it would appear the Act is rather in
consonance with Article 21 of the Constitution of India than in conflict with it. It was provided
for by the British in their enactment of the Indian Penal Code in 1860. Section 312 of the Indian
Penal Code too protects termination of pregnancy described as miscarriage; if it is done “in good
faith for the purpose of saving the life of the woman”. Similarly Section 315 of the Indian Penal
Code protects any act done with intent to prevent child from being born alive or causing it to die
after its birth “if such act has been done in good faith for the purpose of saving the life of the
mother”.
Therefore, a Reproductive right of women under Indian law is not unconstitutional.

4
AIR 2000 AP 156
ON BEHALF OF THE RESPONDENT

ISSUE No.2

Whether the act of the hospital authorities is infringement of right to privacy?

No. The act of the hospital authorities is not infringement of right to privacy. Medical
trust co operative clinic at Mysore is not a State under Article 12 of Indian Constitution, Article
12 of the Constitution provides that, in this part unless the context otherwise requires the states
includes:
a. The Government and the parliament of India
b. The Government and the legislature of each state and
c. All local and other authorities within the territory of India
d. All local and other authorities under the control of Government of India.

The Medical Trust Co operative Clinic Mysore does not fall under the definition of State under
Article 12 of the Indian Constitution.

In M. Durgaiah v. Agent, Tandur Colleries 5, a Division Bench of the A.P. High Court
held that merely because a statute or a rule having the force of a statute requires a company or
some other body to do a particular thing, that company would not possess the attributes of a
statutory body and accordingly no Mandamus could be issued to such a body.
In the present case the hospital authorities are governed by the RTI Act which does not mean that
they are State under Article 12 of the Indian Constitution.

5
AIR 1961 AP 400
ON BEHALF OF THE RESPONDENT

P.K. Biswas v. Indian Institute of Chemical Biology 6, The question in each case would
be--whether in the light of the cumulative facts as established, the body is financially,
functionally and administratively dominated by or under the control of the Government. Such
control must be particular to the body in question and must be pervasive. If this is found then the
body is a State within Article 12. On the other hand, when the control is merely regulatory
whether under statute or otherwise, it would not serve to make the body a State."
In the present case the hospital authorities financially functionally and administratively
under the control of the government.
In Singh v. State of Punjab7 it was held that the literal meaning of privacy, as defined in
the New Oxford English Dictionary is the ‘absence or avoidance of publicity or display; the state
or condition from being withdrawn from the society of others, or from public interest; seclusion.’
In the present case the information is disclosed to husband and not to public. As such privacy is
not infringed.

7
ON BEHALF OF THE RESPONDENT

Issue No.3
Whether unborn child in the mother’s womb has a fundamental right to life?

Yes. Unborn child in the mother’s womb has a fundamental right to life. This right to life has
been enshrined in the Article 21 of the Indian Constitution which states “No person shall be
deprived of his life and personal liberty except according to the procedure established by law”

Universal Declaration, says in Article 6, paragraph 1 that “Every human being has the inherent
right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”
As in the Declaration, the scope of “every human being” is not defined but neither is it limited,
and certainly the ordinary meaning of the term is unambiguous. Further, in the next sentence, “no
one” must mean “no human being” or it means nothing. Paragraph 5 of the same Article provides
in part that “Sentence of death shall not be carried out on pregnant women.” This declaration
states the importance of unborn child.

A child in mother’s womb is regarded as born and treated as person for many purposes. A
direct can be made to a child in womb. Under Hindu Law, the proprietory rights of an unborn
child are recognized and it is governed by the rule of perpetuity.

The Constitution of India does not define the word person. But under section 304A of
IPC the word person includes an unborn child. A child in womb can be regarded as a living entity
with a life of its own. As Art 21 is available to a person so sections 312, 313, 316 of IPC has by
implication recognized the right to life of an unborn child.

Under the Criminal Law, an injury to a child in the womb is a punishable offence.
Causing death to a child in the womb and causing abortion or miscarriage are made punishable
under section 312, 313 and 316 of IPC.
ON BEHALF OF THE RESPONDENT

So from this foregoing provision of Constitution of India and Indian Penal Code it can be
inferred that a child in mother’s womb has rights protected by law and have legal personality.
The Indian Legislature has enacted the M.T.P Act under which abortion is allowed under certain
specified conditions laid down in section 3 of the M.T.P Act, 1971.

PRAYER

The Petitioner herein most respectfully and humbly prayed that this Hon'ble Court may be
graciously be pleased to declare:
1. Section 312 of Indian Penal Code and Section 3 of Medical Termination of Pregnancy
Act as constitutional.
2. Dismiss the Writ petition
3. To pass such other order or orders as this Hon'ble Court may deem fit and proper in
the facts and circumstances of the case.