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Memorial On Behalf of Petitioners
Memorial On Behalf of Petitioners
BEFORE
……………………………………………………….………………………PETITIONER
VERSUS
TABLE OF CONTENTS
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A. THAT THE PETITIONER HAS THE LOCUS STANDI AND THE PETITIONER HAS
APPROACHED THE COURT WITH BONA FIDE INTENTION. ........................................ 13
II. THAT THE ABORTION LAWS VIOLATES RIGHT TO LIFE AND PRIVACY OF
WOMEN. ................................................................................................................................. 14
PRAYER ...................................................................................................................................... 20
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LIST OF ABBREVIATIONS
& And
§ Section
¶ Paragraph
Art. Article
Ch. Chapter
Cri. Criminal
Guj. Gujarat
Ltd. Limited
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No. Number
Pg. Page
Ors. Others
S/d Signed
Supra Above
UP Uttar Pradesh
v. Versus
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VERSES
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LIST OF AUTHORITIES
Cases
Statutes
Other Authorities
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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
Books
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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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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.
CONSTITUTION IS MAINTAINABLE?
B.
OF WOMEN?
C.
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SUMMARY OF PLEADINGS
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.
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.
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
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.
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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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.
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.
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.
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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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: -
……………………………………. Sd/-
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