Tc-Woodpecker (R)

MEMORANDUM ON BEHALF OF RESPONDENT
TC - WOODPECKER
DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUCHERRY ALL INDIA MOOT COURT
COMPETITION UNDER THE AEGIS OF NHRC, DELHI- 2021
BEFORE THE HONOURABLE SUPREME COURT OF DRUPADAM
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF DRUPADAM
WRIT PETITION NO..…… of 2021
PRO-LIFE (APPELLANT)
V.
UNION OF DRUPADAM (RESPONDENT)
With
NHRC (APPELLANT)
V.
With
COUPLE X & Z (APPELLANT)
V.
And
MR. FREDDY & OHCHR (APPELLANT)
V.
MOST REVERENTLY SUBMITTED BEFORE THE HONOURABLE CHIEF JUSTICE AND HIS
OTHER COMPANION JUDGES OF THE SUPREME COURT OF DRUPADAM
COUNSEL ON BEHALF OF RESPONDENT

Page 0
TABLE OF CONTENTS
Table of Contents .................................................................................................................... 1
List of Abbreviations ............................................................................................................... 2
Index of Authorities ................................................................................................................. 3
Statement of Jurisdiction ........................................................................................................ 5
Synopsis of Facts ...................................................................................................................... 6
Statement of Issues ................................................................................................................... 8
Summary of Arguments .......................................................................................................... 9
Arguments Advanced: ..............................................................................................................
1. Whether the petition filed by NHRC for ensuring compensation to Mrs. Angelina
is maintainable or not?..............................................................................................11
2. Whether the intervention petition filed by OHCHR in the petition filed by Mr.
Freddy is maintainable or not?................................................................................16
3. Whether section 3 of the surrogacy Act, 2019 is unconstitutional and a violation
of international obligations of Drupadam or not?..................................................20
4. Whether the proviso to section 3 of the Act, which excludes couples from
Sindhisthan is constitutionally valid or not?...........................................................26
Prayer ...................................................................................................................................... 28
Page 1
LIST OF ABBREVIATIONS
S.NO. ABBREVIATION EXPANSION
1. ¶ Paragraph
2. UOI Union Of India
3. AIR All India Reporter
4. Art. Article
5. CPC Civil Procedure Code
Artificial human Reproductive

6. ART Technology
National Human Rights

7. NHRC Commission
Office of the High Commissioner

8. OHCHR for Human Rights
9. J. Justice
11. Ors. Others
12. SC Supreme Court
13. SCC Supreme Court Cases
14. u/s Under Section
16. v. Versus
17. Hon’ble Honorable
Page 2
INDEX OF AUTHORITIES
BOOKS REFERRED:
1. CONSTITUTION OF INDIA
• “Introduction to the Constitution of India”, by D D Basu,

• “The Constitution of India”, by Bakshi P.M.,
• “Constitutional Law of India”, by Dr. J.N. Pandey,
• “Constitution of India”, by Dr. Subash C. Kashyap,
• “Indian Constitutional Law”, by M.P. Jain,
• “Constitutional Law of India”, by V.N. Shukla.
2. CODE OF CIVIL PROCEDURE, 1908
• “The Code of Civil Procedure”, Dr. Avatar Singh

• “Civil Procedure”, C.K. Takwani
• “Code of Civil Procedure”, Justice P.S. Narayana
• “The Code of Civil Procedure”, Sir Dinshaw Fardunji Mulla
• “Code of Civil Procedure”, SC Sarkar, PC Sarkar
• “The Code of Civil Procedure”, Dr. T.P. Tripathi
STATUTES REFERRED:
1) The Constitution of India, 1950

2) The Code of Civil Procedure, 1908
3) The Protection of Human Rights Act, 1993
4) The Supreme Court Rules, 1966
Page 3
CASES REFERRED:
i. Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539..…11

ii. Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344………..….11
iii. Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044………….…12
iv. Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748…………….…….….12
v. Union of India v. Paul Manickam, AIR 2003 SC 4622……………………….…12
vi. Nivedita Sharma v. Cellular Operators Association of India (2011) 14 SCC 337.12
vii. L. Chandrakumar V. Union of India (1995) 1 SCC 400: AIR 1995 SC 1151...…12
viii. Asst. Collector of Central Excise v. Jainson Hosiery 1979 AIR 1889, 1980 SCR
(1) 134………………………………………………..…………………………..13
ix. Union Of India vs Paul Manickam and Anr AIR 2003 SC 4622………………...13
x. PN Kumar and Anr vs Municipal Corporation of Delhi 1988 SCR (1) 732, 1987
SCC (4) 609……………………………………………………...……………….13
xi. Power Grid Corporation of India Ltd. v. Century Textiles and Industries Ltd
(2017) 5 SCC 143……………………………………………………………..….15
xii. Indian Handcrafts Emporium v. Union of India (2003) 7 SCC 589…….....…….15
xiii. N.C. Dhoundial v. Union of India (2004) 2 SCC 579……………………………15
xiv. Rajesh Das v. Tamil Nadu State Human Rights Commission 2010 SCC OnLine
Mad 4543: 2010 (5) CTC 589……………………………………………...…….15
xv. Chhattisgarh State Electricity Board v. Chhattisgarh Human Rights Commission
2017 SCC OnLine Chh 1415, decided 7.11.2017…………………………….…15
xvi. Devika Biswas v. Union of India (2016) 10 SCC 726………………………..….21
xvii. B.K. Parthasarthi v. Government of Andhra Pradesh 999 (5) ALT 715, 2000
(1)……………………………………………………………………...………....21
xviii. Suchita Srivastava and Another v Chandigarh Administration (2009) 14 SCR
989………………………………………………………………………………..22
xix. S.H. and Others v. Austria [GC]No. 57813/00, ECHR 2011, Judgment of 3
November 2011, paras. 82, 118…………………………………………………..24
xx. ECHR, Costa and Pavan v. Italy, no. 54270/10, Judgment of 28 August 2012…24
xxi. I/A Court H.R., Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa
Rica. Judgment of November 28, 2012. paras. 284, 315…………………..…….25
xxii. Sree Mohan, Chowdhury v. The Chief Commission, Union Territory of Tripura
1964 AIR 173………………………………………………………………….…26
Page 4
WEBSITES REFERRED:
i. www.indiankanoon.com
ii. www.legalservicesindia.com
iii. www.legalblog.in
iv. www.judis.nic.in
v. www.lawyersclubindia.com
vi. www.lawctopus.com
vii. www.legalindia.com
viii. www.manupatra.com
ix. www.scconline.com
x. www.legitquest.com
Page 5
STATEMENT OF JURISDICTION
The appellants have approached this Hon’ble Supreme Court under Article 32 of Constitution
of Drupadam read with Supreme Court rules, 2013. The respondent has appeared to this
Hon’ble Supreme Court of Drupadam in response to the petition filed by the appellants.
Page 6
SYNOPSIS OF FACTS
1. The Union of Drupadam from the past three decades, having rapid developments in science
and technology and improvements in health care facilities.
2. Union of Drupadam is surrounded by six countries Kekayam; Sindhisthan; Panchalam;

Vankadesh; Cylon and Malayarajyam. Except Sindhisthan all the other five countries are
having good friendly relations with Drupadam. These countries are against abortion and
artificial human reproductive technologies.
3. Drupadam focused on extensive medical research in the field of ART to help the childless
couples to have their own genetically related child and also to raise the economy of the
country through medical tourism. Drupadam emerged as the ‘capital for surrogacy’ in the
world. The practice of surrogacy in Drupadam was largely unregulated which resulted in
several litigations before the Hon’ble Supreme Court and different High Courts all over the
country.
4. ‘Mannar’, a small town in Karala, a state in Drupadam, has acquired a distinct reputation
as a place for outsourcing commercial surrogacy. The Law Commission in its 326th Report
recommended that the government should take steps to regulate ART.
6. In June, 2019, the Parliament of Drupadam enacted a Surrogacy (Regulation and Control)
Act, and thereby legalized the practice of surrogacy. Section3: ‘every married hetero-sexual
couple is entitled to have a child with the help of surrogacy (both altruistic and commercial)’
Provided hetero sexual couples belongs to Kekayam; Panchalam; Vankadesh; Cylon and
Malayarajyamare also eligible to claim the right to access surrogacy in Drupadam.
7. Most of the religious groups staged several protests against the legalization of surrogacy.
An NGO, ‘Pro- Life’ working in the field of human rights of women approached the Hon’ble
Supreme Court of Drupadam with a petition contended that the Surrogacy Act is
unconstitutional and a violation of international obligations of Drupadam.
Page 7
8. On 24th August 2019, NGO’s including Pro-life organised a long march to Parliament of
Drupadam against the Surrogacy Act. Mrs. Carolin and Mr. Jacques, representatives of Pro-
Life in France and England respectively, were also part of this long march. The march started
peacefully, but subsequently became very aggressive.
9. To control the mob violence, the police started using tear gas, followed by lathi charge. As
the situation escalated the police opened fire which resulted in bullet injuries to several
people including Mr.Jacques and Mrs. Carolin. Mr. Jacques succumbed to the bullet injuries
and died the next day. Mrs. Carolin received serious injury and one of her leg had to be
amputated.
10. Mrs. Angelina, the spouse of Mr. Jacques, approached NHRC claiming compensation for
the death of her husband. The NHRC directed the Central Government to pay Rs.20,00,000/-
as compensation to Mrs. Angelina.
11. The Home Minister in a public meeting stated, the Government is not going to pay Mrs.
Angelina as Mr. Jacques participated in an illegal and violent protest against the Government
and Mr. Jacques was a victim of opposition party and their hidden agenda to create problems.
The NHRC approached the Hon’ble Supreme Court of Drupadam with a petition for ensuring
that Mrs. Angelina will receive the amount of compensation as granted by NHRC.
13. In September 2019, a Couple X&Z from Sindhisthan approached a Surrogacy clinic in
‘Mannar’. The request was rejected on the ground that, they were not entitled to claim the
right to access to surrogacy in Drupadam. The Couple X&Z approached the Hon’ble
Supreme Court with a petition to nullify the proviso provided in Section 3 of the Act.
14. In October 2019, Mr. Freddy, the husband of Mrs. Carolin approached the Hon’ble
Supreme Court of Drupadam with a petition claiming compensation for the injury suffered by
Mrs. Carolin.
15. OHCHR expressed their concerns about the police actions and filed a petition to join as a
party in the petition filed by Mr. Freddy. This petition was vehemently objected by the
Central Government.
Page 8
STATEMENT OF ISSUES
1. WHETHER THE PETITION FILED BY NHRC FOR ENSURING

COMPENSATION TO MRS. ANGELINA IS MAINTAINABLE OR NOT?
2. WHETHER THE INTERVENTION PETITION FILED BY OF OHCHR IN THE

PETITION FILED BY MR. FREDDY IS MAINTAINABLE OR NOT?
3. WHETHER SECTION 3 OF THE SURROGACY ACT, 2019 IS

UNCONSTITUTIONAL AND A VIOLATION OF INTERNATIONAL
OBLIGATIONS OF DRUPADAM OR NOT?
4. WHETHER THE PROVISO TO SECTION 3 OF THE ACT, WHICH EXCLUDES

COUPLES FROM SINDHISTHAN IS CONSTITUTIONALLY VALID OR NOT?
Page 9
SUMMARY OF ARGUEMENTS

The counsels appearing on behalf of The Union of Drupadam (hereinafter
Respondents) humbly submits before the Hon’ble Supreme Court of Drupadam that
the Petition filed by NHRC before the Hon’ble Supreme Court of Drupadam for
ensuring compensation to Mrs. Angelina is not maintainable.
2. WHETHER THE INTERVENTION PETITION FILED BY OF OHCHR IN

THE PETITION FILED BY MR. FREDDY IS MAINTAINABLE OR NOT?
The counsel appearing on behalf of The Union of Drupadam (hereinafter
Respondent) most humbly submit before this Hon’ble court the intervening
application filed by OHCHR is not maintainable before the hon’ble Supreme court
of Drupadam.

The counsels appearing on behalf of Respondent humbly submits before the Hon’ble
Supreme Court of Drupadam that the Surrogacy Act enacted by the Central
Government is constitutional and is not violation of international obligations of
Drupadam.
4. WHETHER THE PROVISO TO SECTION 3 OF THE ACT, WHICH
EXCLUDES COUPLES FROM SINDHISTHAN IS CONSTITUTIONALLY
VALID OR NOT?
Supreme Court of Drupadam that the Petition filed by couple X&Z before the
Hon’ble Supreme Court of Drupadam contending that the proviso under Section 3 of
The Surrogacy Act enacted by the Central Government is unconstitutional is of no
legal sense and lack the locus standi to be maintainable before this court.
Page 10
ARGUMENTS ADVANCED

The counsels appearing on behalf of The Union of Drupadam (hereinafter Respondents)

humbly submits before the Hon’ble Supreme Court of Drupadam that the Petition filed by
NHRC before the Hon’ble Supreme Court of Drupadam for ensuring compensation to Mrs.
Angelina is not maintainable. The Appellant has come before this Hon’ble court to enforce its
order passed against the Respondents for a prima facie illegal case of violence. The NHRC
has no power to come before this Hon’ble court to enforce its award which is not binding.
The counsel has divided the arguments into 4 fold [1.1] The Appellant has no locus standi
[1.2] Effective Alternate remedy Available [1.3] The award passed by NHRC is unfair [1.4]
The Award cannot be executed though the Hon’ble court
[1.1] The Appellant has no locus standi
No action lies in the Supreme Court under Art. 32 unless there is an infringement of a
Fundamental Right,1 as the Supreme Court has previously emphasized that “The violation of
Fundamental Right is the sine qua non of the exercise of the right conferred by Art. 32.” 2In
the given case there seems to be no violation of Fundamental right because the protest march
itself turned out to be illegal and violent. Hence no fundamental right can be enforced for
such an illegal protest.
1
Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539
2
Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344
Page 11
In addition to this, a person acquires a locus standi, when he has to have a personal or
individual right which has been violated or threatened to be violated.3 Since, no right of
petitioner has been infringed, he has no locus standi before the Court. In this case since Mrs.
Angelina Herself approached the NHRC and seeked compensation, then she has her own
liberty to come before this Hon’ble court to enforce her order by NHRC. Hence the ground of
violation of fundamental right cannot be taken here which makes to nullify the principle of
locus standi.
[1.2] Effective Alternate Remedy available
This Hon’ble Court has itself imposed a self-restraint in its own wisdom on the exercise of
jurisdiction under Art. 32 where the party invoking the jurisdiction has an effective adequate
alternative remedy in the form of Art. 226 of the Constitution, although this Rule is a Rule of
convenience and discretion rather than a Rule of law.4Moreover, in order to invoke the
jurisdiction under Art. 32 of the Constitution to approach this Court directly, it has to be
shown by the petitioner as to why the High Court has not been approached, could not be
approached or it is futile to approach the High Court. Unless satisfactory reasons are
indicated in this regard, filing of petition in such matters directly under Art. 32 of the
Constitution is to be discouraged.5
The respondent would like to cite Nivedita Sharma v. Cellular Operators Association of
India6 – In this case, this honorable Supreme Court held that Petitioner must exhaust its
alternative remedy before the State Commission and should not directly come to the High
Court for challenging the judgment of the District forum. The tribunals are competent enough
to hear this particular case by the virtue of L. Chandrakumar V. Union of India7. Alternative
remedy is a bar unless there was complete lack of jurisdiction in the officer or authority to
take action impugned, however, the existence of a competent body to hear this particular case
questions the maintainability of the writ petition filed. It was held that this Hon’ble apex
3
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044
4
Mohammed Ishaq v. S. Kazam Pasha, (2009) 12 SCC 748.
5
Union of India v. Paul Manickam, AIR 2003 SC 4622.
6
(2011) 14 SCC 337
7
(1995) 1 SCC 400: AIR 1995 SC 1151
Page 12
court in Asst. Collector of Central Excise v. Jainson Hosiery8 where there is alternative
statutory remedy court should not interfere unless the alternative remedy is too dilatory or
cannot grant quick relief.
Thus, the respondents humbly submit that the present writ petition is not maintainable on the
ground that alternative remedy has not been exhausted. Also, in other cases such as Paul
Manickam, Kanubhai9 and P.N. Kumar10 It is stated that the petitioners are required to
undergo the exhaustion of local remedies before approaching the court under Article 32. It is
admitted that this self-imposed restraint is the discretion of this honorable court to issue a
direction to exhaust the local remedies before approaching this court but the respondents are
very well aware that this does not oust the jurisdiction of this court under article 32.
[1.3] The award passed by NHRC is unfair
The award passed by the NHRC should go through the section 12 r/w section 13(1) of The
Protection of Human Rights Act, 1993. The section 13 reads as follows
“Powers relating to inquiries.—(1) The Commission shall, while inquiring into complaints
under this Act, have all the powers of a civil court trying a suit under the Code of Civil
Procedure, 1908 (5 of 1908), and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of witnesses and examining them on oath;
(b) discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents;
(f) any other matter which may be prescribed.”
8
1979 AIR 1889, 1980 SCR (1) 134
9
AIR 2003 SC 4622
10
1988 SCR (1) 732, 1987 SCC (4) 609
Page 13
It is clear from the section that they must have gone through the process of enquiring about
the issue in which the particular and most important cases which nullify their claim have been
left out. Those are:
1) The march started peacefully, but subsequently it changed its colour

2) the people started shouting anti-government slogans and became very aggressive
3) Some Of Them Started pelting stones on police personnel
4) others started burning public buses and other vehicles in the streets
5)
To control those violence which is of 4 fold, the police have also dealt it stage wise.
1) the police took immediate action

2) started using tear gas
3) followed by lathi charge
4) As the situation was escalating the police opened fire towards the crowd to disperse
them.
This has been completely neglected by The NHRC while inquiring about the case, because it
is the crowd which made them open fire. Hence the award is unfair.
[1.3] The award cannot be executed through this Hon’ble court
As per the act of 1993 Section 18 (c) states that the Award passed by the court is only
recommendatory and not binding in nature. That too for a frivolous award the court is not
bound to entertain this petition.
Even though Section 18 of the Protection of Human Rights Act, 1993 talks about the entitled
compensation, Section 19(a) of the Act explicitly mentions that the Commission has no
authority to grant compensation and can only recommend the same.
Page 14
It was also observed by the Supreme Court in the matter of Power Grid Corporation of India
Ltd. v. Century Textiles and Industries Ltd.,11 that the power to award compensation is with
the District Magistrate, which furthermore elucidated on the jurisdiction of HRC. Much
reliance was given to recent Supreme Court judgments like Indian Handcrafts Emporium v.
Union of India12; N.C. Dhoundial v. Union of India,13 and Rajesh Das v. Tamil Nadu State
Human Rights Commission,14 which ultimately concluded that HRC is a recommendatory
body and it has no jurisdiction to pass an order directing payment of compensation and hence
the previous order was just a recommendation and not an order. [Chhattisgarh State
Electricity Board v. Chhattisgarh Human Rights Commission15]
Therefore, it is concluded that, the award is not binding on the parties and the court at no
discretion can reject the petition since the incident it itself illegal and violent in nature and
thus the petition is not maintainable before this Hon’ble court.
11
(2017) 5 SCC 143
12
(2003) 7 SCC 589
13
(2004) 2 SCC 579
14
2010 SCC OnLine Mad 4543: 2010 (5) CTC 589
15
2017 SCC OnLine Chh 1415, decided 7.11.2017
Page 15
2. WHETHER THE INTERVENTION PETITION FILED BY OHCHR IN THE

PETITION FILED BY MR. FREDDY IS MAINTAINABLE OR NOT?
The counsel appearing on behalf of The Union of Drupadam (hereinafter Respondent) most
humbly submit before this Hon’ble court the intervening application filed by OHCHR is not
maintainable before the hon’ble Supreme court of Drupadam. The intervening application
filed is not legally enforceable and it does not have any prima facie case. The counsel has
divided the arguments into two fold [2.1] OHCHR does not satisfies the term intervener [2.2]
The OHCHR intervening in the sovereign affairs of a country
[2.1] OHCHR does satisfies the term intervener
The misuse of intervention applications becomes significant when the same is being
exercised at the highest appellate court in the country. It must be noted that there is a
difference between the concepts of impleadment and intervention. While impleadment results
in addition of the applicant as a party, intervention merely allows the applicant to address the
Court.
Civil law, on the other hand, has a detailed doctrine for dealing with situations concerning
addition or deletion of parties that may have a connection with the subject matter of the suit.
The question therein is whether the person has any interest in the subject matter of the
suit/proceedings pending before the Court. Here it is to be noted clearly that OHCHR being
an international organisation complains about police brutality yet joins inthe petition filed by
Mr.Freddy whose wife has her leg amputated, which clearly shows that the subject matter is
completely different.
This is commonly referred to as ‘the necessary and proper party’ doctrine relevant for the
effectual and complete adjudication of all the questions involved in the suit/proceeding under
sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure. A ‘proper party’ is to be
distinguished from a ‘necessary party’, with the former being merely relevant, as opposed to
the latter, which is indispensable.
Page 16
Apart from the traditional civil and criminal axis, the writ remedy of a person is present under
Article 226 and Article 32. As a general rule, the right to move to the Court is available to
only those person(s) whose fundamental right/constitutional right is violated. Locus standi, as
it is referred, is necessary before availing the writ remedy, otherwise the Court may rule that
the person “lacks standing” and can dismiss the case without considering the merits. In this
case too it is none of the concern for OHCHR to intervene in this matter where none of their
fundamental rights has been violated. Hence they lack standing in this case.
The jurisprudence under Article 226 and Article 32 has given birth to the public interest
litigation (PIL) route, which allows members of public, not necessarily a person with locus
standi, to approach the Court for the reliefs sought therein. Considering the obvious public
law element in the writ and PIL jurisdiction of the constitutional courts, the intervention
applications filed therein are, in practice, allowed with a slightly lower standard of scrutiny.
As per the Supreme Court Rules, 2013, there is no particular provision/rule dealing with the
interveners. Order I, Rule 2(1)(o) defines a ‘respondent’ to include an intervener. Further, per
Order V Rule 2(3), an application for striking out or adding party or for intervention in a suit,
appeal or other proceedings may be decided by a Single Judge sitting in Chambers. Order
XVII Rule 3 states that,
“in cases where intervention is allowed by the Court, the intervener or interveners shall be
entitled to receive documents produced and relied upon by the petitioner(s), unless directed
otherwise by the Court”.
While these Rules provide a tacit approval to the concept of intervention, it is the second part
of Order XVII Rule 3 that states,
“the intervener(s) may make oral submissions with the leave of the Court”.
Therefore, while Order V Rule 2(3) states that the intervention is to be decided by the
Chamber judge, Order XVII Rule 3 contemplates the Court allowing interveners to make oral
submissions. In effect, intervention applications are sometimes listed before Chamber judges
and simultaneously listed before Courts without their being allowed by the Chamber judges.
Since OHCHR being an International organisation under the United Nations, and concerned
about the right affected by a foreigner in the State of Drupadam, it well within the ambit
comes under the ambit of Intervener in this Particular case.
Page 17
[2.1] The OHCHR intervening in the sovereign affairs of a country
Concerning the capacity of the OHCHR to file this intervention application, it has been
established under public international law, that the capacities of international organisations
like that of the UN and related bodies like the OHCHR and sovereign states differ to a great
extent. Starke’s International Law mentions:
“Almost every activity is prima facie within the competence of a state under International
Law, whereas practically the opposite principle applies to an international organ, namely, that
any function, not within the express terms of its constitution, is prima facie outside its
powers.”16
Starke has further quoted the International Court of Justice’s opinion in the context of the
UN:
“Whereas a State possesses the totality of international rights and duties recognized by
international law, the rights and duties of an entity such as the Organization must depend
upon its purposes and functions as specified or implied in its constituent documents and
developed in practice.”17
Therefore, this means that there will always be a very strong presumption that an
international entity like the UN or the OHCHR does not have a mandate to act in a particular
manner, if there is no express provision in its constituent document enabling the same. In the
case of the OHCHR, it is the mandate it has received from the UNGA resolution, which does
not mention that it has the authority to file applications of any nature in national courts.
Hence, the OHCHR should have made an endeavour to establish its authority in the
application itself. However, nothing of this sort can be found in the unauthenticated text 18 of
the application. Thus, OHCHR interfering in sovereign affairs is not maintainable.
16
J. Starke & I. Shearer, 1996, Starke’s International Law, 547
17
id
18
Scribd. 2020. Draft Intervention Application On Behalf Of OHCHR. [online] Available at:
<https://www.scribd.com/document/449928296/Draft-Intervention-application-on-behalf-of-
OHCHR#from_embed>
Page 18

Supreme Court of Drupadam that the Surrogacy Act enacted by the Central Government is
constitutional and is not violation of international obligations of Drupadam. The counsel has
divided the arguments into two fold and they are as follows:
[3.1] Concurrence with the Constitution
The legislature while legislating an act has to ensure that the constitution being the law of the
land is being adhered to and is not being beyond the scope of the constitution. In this instant
case in June, 2019, the Parliament of Drupadam enacted a Surrogacy (Regulation and
Control) Act, and thereby legalized the practice of surrogacy. The Act came to force from
June 14th, 2019.19
Drupadam had been allowing surrogacy to take place without proper mechanisms or legal
frameworks in place. Many people from neighbouring countries and other parts of the world
have visited Drupadam to avail ART, especially surrogacy facilities. It emerged as the
‘capital for surrogacy’ over a span of time. Considering that there were no specific legal
provisions to deal with surrogacy. It resulted in several litigations before the Hon’ble
Supreme Court and different High Courts all over the country.20
The Law Commission of Drupadam in its 326th Report recommended that the government
should take steps to regulate ART. In response to the same taking into account all the
necessary considerations and deliberations, the said Act was enacted which legalises
surrogacy.
19
Moot Proposition, Pg. 3
20
Moot Proposition, Pg. 3
Page 19
Section 3 of the Act which is being contested here as ultra-vires to the constitution is
extracted as follows:
Section 3 : Notwithstanding anything contained in any other law fort he time being in force,
subject to the provisions of this Act, ‘every married hetero-sexual couple is entitled to have a
child with the help of surrogacy (both altruistic and commercial)’
Explanation: Married heterosexual couple means and includes only nationals of Drupadam or
at least one spouse must be a national of Drupadam.
Provided heterosexual couples belongs to Kekayam; Panchalam; Vankadesh; Cylon and
Malayarajyamare also eligible to claim the right to access surrogacy in Drupadam.
The act aims to provide a legal framework where there was none while also ensuring that it
aids to help the childless couples to have their own genetically related child and also to raise
the economy of the country through medical tourism.
In Devika Biswas v. Union of India21, the supreme court recognized the right to
reproduction as an important component of the ‘right to life ’under Article 21. These
reproductive rights of women include the right to carrying a baby to term, giving birth, and
raising children. They also include rights to privacy, dignity, and integrity of the body.
In the instant matter, the Act enforces women to be more forthcoming with their reproductive
rights and enforces them to access parts of their human rights that is to control their own
reproductive autonomy without being subjected to the stigmas of the society.
The Andhra Pradesh High Court in B.K. Parthasarthi v. Government of Andhra Pradesh22
upheld‘ the right to reproductive autonomy ’of an individual as a part of their right to
privacy. This is inclusive of the right to procreation and parenthood, and the prerogative to
decide the mode of parenthood that rests with the concerned individual.
This Act enforce a women to recognise her right to decide the mode of parenthood which is
also a part of the rights conferred under Article 21 of the Constitution.
21
(2016) 10 SCC 726
22
999 (5) ALT 715, 2000 (1)
Page 20
The Supreme Court in Suchita Srivastava and Another v Chandigarh Administration23

stated that reproductive autonomy is a dimension of personal liberty as guaranteed under
Article 21. It held: “It is important to recognise that reproductive choices can be exercised to
procreate as well as to abstain from procreating. The crucial consideration is that a woman's
right to privacy, dignity and bodily integrity should be respected. This means that there
should be no restriction whatsoever on the exercise of reproductive choices.
In the matter at hand the Act tries to enforces the supplementary rights that draw its roots
from Article 21, the women who wants to act as an surrogate or the women who cannot
procreate to form a child of her own are now being enforced to discover rights that were
dormant within the domain of law. She is being provided with almost reproductive autonomy
which falls under the term ‘personal liberty’ provided under Article 21.
In the spirit of Arguendo, if this Act is declared to be unconstitutional as for the case of the
appellants herein, this is sweeping ban on surrogacy that is being followed in the country for
a very long period of time would turn into something much more regressive: It essentially
strips women of autonomy over their bodies and, in the process, violates their basic civil and
fundamental rights.
It is pertinent to note that blanket bans do not necessarily always lead to the abolition of the
activity, as a result, it may directly lead to creation of unregulated, exploitative
underground/black markets. In this scenario, the risks of unsafe medical practices cannot be
emphasised enough. Hence, this may result in greater exploitation of women and
abandonment of children due to lack of accountability. Which intern would itself lead to
further the cause for more litigation to be brought before this Hon’ble court.
23
(2009) 14 SCR 989
Page 21
[3.2] Adheres to international obligation
In the Universal Declaration of Human Rights,
Article 324 states as follows - “Everyone has the right to life”
In the International Covenant on Civil and Political Rights (ICCPR)
Article 6(1)25 states “Every human being has the inherent right to life. This right shall be
protected by law.”
The Committee on Economic, Social and Cultural Rights and the Committee on the
Elimination of Discrimination against Women (CEDAW)26 have both clearly indicated that
women’s right to health includes their sexual and reproductive health. This means that States
have obligations to respect, protect and fulfil rights related to women’s sexual and
reproductive health27. Some relevant portions of the convention are extracted herein;
Article 5(a) [State Parties shall take all appropriate measures to modify the social and cultural
patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the inferiority
or the superiority of either of the sexes or on stereotyped roles for men and women.
Article 16 guarantees women equal rights in deciding “freely and responsibly on the number
and spacing of their children and to have access to the information, education and means to
enable them to exercise these rights.”
24
Universal Declaration of Human Rights, adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810
(1948).
25
International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, G.A. Res. 2200A (XXI), UN
GAOR, Drupadam accorded to the ICCPR ON 10 April 1979
26
Convention on the Elimination of All Forms of Discrimination against Women, adopted Dec. 18, 1979, G.A.
Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/34/46, 1249 U.N.T.S. 13 (entered into force
Sept. 3, 1981).
27
https://www.ohchr.org/en/issues/women/wrgs/pages/healthrights.aspx
Page 22
THE BEIJING DECLARATION AND PLATFORM FOR ACTION states "The human
rights of women include their right to have control over and decide freely and responsibly on
matters related to their sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence."28
From these it is clear that the Act is in concurrence with these international obligations of
Drupadam to enforce and protect women’s rights to freely and responsibly decide upon her
reproductive autonomy. The Surrogacy Act in this instant matter is only a step further in the
spheres of human rights law and women’s rights and not a step back as propounded by the
appellants. To buttress this stance the Counsel would like to rely upon some judgments from
various world courts;
In the case of S.H. and Others v. Austria [GC]29. The Human rights bodies have recognized
that “the right of a couple to conceive a child and to make use of medically assisted
procreation for that purpose is … an expression of private and family life” protected by
human rights norms, but that the interpretation of this area of international law “is subject to a
particularly dynamic development in science and law…”
The European Court found violations in Italy’s law restricting access to in vitro fertilization
for sterile or infertile couples and men with sexually transmitted diseases only30. With regard
to the applicants, who were carriers of cystic fibrosis, the European Court found the
restriction to be a disproportionate interference with their right to respect for private and
family life because the Italian legislature’s reasoning was inconsistent in restricting IVF in
order to protect the health of the mother and child, preserve the dignity and freedom of
conscience of the medical profession, and avoid its use in eugenics, while simultaneously
allowing abortions on medical grounds.
The Inter-American Court held that Costa Rica’s complete prohibition of in vitro fertilization
violated the American Convention’s provisions on humane treatment, personal liberty,
privacy, and rights of the family because it was a disproportionately “severe interference in
28
U.N. FOURTH WORLD CONFERENCE ON WOMEN, THE BEIJING DECLARATION AND
PLATFORM FOR ACTION, 1 96 (1995).
29
No. 57813/00, ECHR 2011, Judgment of 3 November 2011, paras. 82, 118.
30
See ECHR, Costa and Pavan v. Italy, no. 54270/10, Judgment of 28 August 2012.
Page 23
relation to [the couples’] decision-making concerning the methods or practices they wished to
attempt in order to procreate a biological child” but offered only “very slight” protection of
prenatal life31.
From the aforementioned cases it is apparent that the steps taken by the respondent herein is
only to raise the standards of available human rights and women’s right to other developed
nations, in the area of reproductive autonomy and Artificial Reproductive Technologies
which is in conformity with the international obligation than otherwise as suggested by the
appellants.
31
I/A Court H.R., Case of Artavia Murillo et al. (“In Vitro Fertilization”) v. Costa Rica. Judgment of November
28, 2012. paras. 284, 315.
Page 24
4. WHETHER THE PROVISO TO SECTION 3 OF THE ACT, WHICH

EXCLUDES COUPLES FROM SINDHISTHAN IS CONSTITUTIONALLY
VALID OR NOT?
Supreme Court of Drupadam that the Petition filed by couple X&Z before the Hon’ble
Supreme Court of Drupadam contending that the proviso under Section 3 of The Surrogacy
Act enacted by the Central Government is unconstitutional is of no legal sense and lack the
locus standi to be maintainable before this court.
The Supreme Court in the case of Sree Mohan, Chowdhury v. The Chief Commission,
Union Territory of Tripura 32 states that,
The passage relied upon reads: "In order that the Court may investigate the validity of a
particular ordinance or Act of a legislature, the person moving the Court should have a locus
standi. If he has not the locus standi to move the Court, the Court will refuse to entertain his
petition questioning the vires of the particular legislation."
In the case at hand the Couple X&Z are nationals of Sindhisthan which is one of the six
neighbouring countries surrounding Drupadam. It is pertinent to note that except Sindhisthan
all the other five neighbouring countries are having good friendly relations with Drupadam.33
It is upon the appellants to satisfy this court that they indeed possess the locus standi to
dispute the constitutionality of a piece of legislation that is in no way concern of persons from
other sovereign states to interfere unless expressly provided the rights to do so. The
appellants cannot claim a right that do not exists in the first instance and even if aggrieved by
a legislation made fully within the sovereign autonomy of Drupadam it is only available to
the state of Sindhisthan to elevate this matter to the appropriate international forum.
The appellants herein are only purely motivated by their private interest in this matter which
is apparent from the facts that the Act was enacted and brought into force on June of 201934
and the appellants after the fact, on September 2019 Surrogacy clinic named ‘We Care ’
32
1964 AIR 173
33
Moot Proposition, Pg.1
34
Moot Proposition Pg.2
Page 25
which is situated in the town of ‘Mannar’. The clinician from the said hospital rejected their
request for availing the method of surrogacy for begetting a child for them. The request was
rejected on the ground that, as per the Surrogacy Act, they
were not entitled to claim the right to access to surrogacy in Drupadam.35
The appellants lack the locus standi to file this instant petition as they are trying to access
something that is explicitly not being provided to them. In the spirit of Arguendo, only
couples from 5 neighbouring countries are entitled to reap the benefits of the surrogacy Act,
the world as we know today contains 195 countries in total if Sindhistan is allowed to
participate why not all the other 190 countries.
It is the sovereign autonomy of a State to decide upon its economic affairs. The decision to
open its economy in terms of surrogacy to 5 countries alone is a policy decision of Drupadam
that cannot be challenged before this Hon’ble by the instant petitioner, unless proven to be
grossly violative of any fundamental rights in the constitution, to which the instant appellants
are not subjects to.
Also, it has to be noted that there lies an issue before this Hon’ble court to decide if Section 3
of the Act is valid in the eye of law. In Arguendo, if it is found to be constitutional. In this
instant matter the appellants case is reductio ad absurdum that is the opposing scenario
established by the/ appellants would only lead to absurdity and contradiction as the section
being valid inherently means the proviso also is valid unless and until it is proven to be
violative of any rights that the State of Drupadam is obligated to follow.
Therefore, it is most humbly submitted by the counsel on behalf of respondents before this
Hon’ble court that the petition stands to be dismissed for lacking any merits or legal
35
Moot Proposition Pg. 4
Page 26
PRAYER
In the light of facts stated, issues raised, arguments advanced and authorities cited, the
respondent humbly submit that this Hon’ble Court may be pleased to declare the following:
1. The petitions filed before this Hon’ble Supreme Court shall be dismissed
2. The Surrogacy Act, 2019 is constitutional
AND /OR
Pass any other order as the Hon’ble Court deems fit in the interest of equity, justice, fair play
and good conscience.
All of which is humbly prayed.
(Counsel on behalf of respondent)
Page 27

Tc-Woodpecker (R)

Uploaded by

Copyright:

Available Formats

You might also like

Tc-Woodpecker (R)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Tc-Woodpecker (R)

Uploaded by

Copyright:

Available Formats

MEMORANDUM ON BEHALF OF RESPONDENT

BEFORE THE HONOURABLE SUPREME COURT OF DRUPADAM

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF DRUPADAM

WRIT PETITION NO..…… of 2021

UNION OF DRUPADAM (RESPONDENT)

UNION OF DRUPADAM (RESPONDENT)

COUPLE X & Z (APPELLANT)

UNION OF DRUPADAM (RESPONDENT)

MR. FREDDY & OHCHR (APPELLANT)

UNION OF DRUPADAM (RESPONDENT)

COUNSEL ON BEHALF OF RESPONDENT

Table of Contents .................................................................................................................... 1

List of Abbreviations ............................................................................................................... 2

Index of Authorities ................................................................................................................. 3

Statement of Jurisdiction ........................................................................................................ 5

Synopsis of Facts ...................................................................................................................... 6

Statement of Issues ................................................................................................................... 8

Summary of Arguments .......................................................................................................... 9

Arguments Advanced: ..............................................................................................................

S.NO. ABBREVIATION EXPANSION

2. UOI Union Of India

3. AIR All India Reporter

5. CPC Civil Procedure Code

Artificial human Reproductive

National Human Rights

Office of the High Commissioner

11. Ors. Others

12. SC Supreme Court

13. SCC Supreme Court Cases

14. u/s Under Section

17. Hon’ble Honorable

• “Introduction to the Constitution of India”, by D D Basu,

2. CODE OF CIVIL PROCEDURE, 1908

• “The Code of Civil Procedure”, Dr. Avatar Singh

1) The Constitution of India, 1950

i. Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539..…11

2. Union of Drupadam is surrounded by six countries Kekayam; Sindhisthan; Panchalam;

1. WHETHER THE PETITION FILED BY NHRC FOR ENSURING

2. WHETHER THE INTERVENTION PETITION FILED BY OF OHCHR IN THE

3. WHETHER SECTION 3 OF THE SURROGACY ACT, 2019 IS

4. WHETHER THE PROVISO TO SECTION 3 OF THE ACT, WHICH EXCLUDES

1. WHETHER THE PETITION FILED BY NHRC FOR ENSURING

2. WHETHER THE INTERVENTION PETITION FILED BY OF OHCHR IN

3. WHETHER SECTION 3 OF THE SURROGACY ACT, 2019 IS

1. WHETHER THE PETITION FILED BY NHRC FOR ENSURING

The counsels appearing on behalf of The Union of Drupadam (hereinafter Respondents)

[1.1] The Appellant has no locus standi

[1.2] Effective Alternate Remedy available

[1.3] The award passed by NHRC is unfair

(b) discovery and production of any document;

(c) receiving evidence on affidavits;

(e) issuing commissions for the examination of witnesses or documents;

(f) any other matter which may be prescribed.”

1) The march started peacefully, but subsequently it changed its colour

1) the police took immediate action

[1.3] The award cannot be executed through this Hon’ble court

2. WHETHER THE INTERVENTION PETITION FILED BY OHCHR IN THE

[2.1] OHCHR does satisfies the term intervener