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Respondent - Bishop Cottons' 2017
Respondent - Bishop Cottons' 2017
AT DELHI
W. P. /2017
IN THE MATTER OF
PETITIONER
V.
RESPONDENT
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MEMORIAL ON BEHALF OF RESPONDENTS
SIXTH NATIONAL MOOT COURT COMPETITION 2017
TABLE OF CONTENTS
I. INDEX OF AUTHORITIES.......................................................................................v
V. SUMMARY OF ARGUMENTS......................................................................................xii
VII. PRAYER......................................................................................................................XIII
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LIST OF ABBRIVATIONS
Art. Article
Bom. Bombay
Cl. Clauses
Edn. Edition
Hon’ble Honourable
i.e. That is
J. Justice
Ltd. Limited
Ors. Others
P. Page
SC Supreme Court
Sec Section
Ss Sections
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STATEMENT OF AUTHORITIES
A. Books Referred
1. Basu, Durga Das, Shorter Constitution of India, 13th Ed, 2003, Wadhwa & Co.
3. D.L. Keir & F.H. Lawson, Cases in constitution Law, 6’th Ed., 1997
4. Dicey A.V., An Introduction to the study of the law of the Constitution, 10th Ed, 2003,
8. Jain, M.P., Indian Constitutional Law, 5th Ed. Vol I, II, III, 2003, Wadhwa
Publications.
9. Seervai H.M., Constitution of India, 4th Ed, Vol, I, 2002, Universal Book Traders
B. Cases Cited
1. Ash Mohammad v. Shiv Raj Singh (2013)1 All LJ 222 (226) (SC).
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1. www.Indiakanoon.com
2. www.vakilno1.com
3. http://www.oxforddictionaries.com
4. www.lawkhoj.com
5. www.manupatra.com
F.
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STATEMENT OF JURISDICTION
The petitioner has approached this Hon’ble Supreme Court under Art. 32 of the Constitution and
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STATEMENT OF FACTS
Population is one of the pre-requisites for a state to enjoy international legal personality.
However, population explosion in any state acts as a multifaceted issue and in particular, in a
pluralistic society like Vindhya because it espouses diverse challenges concerning the use of
available natural resources, creation of equal opportunities to all in education and
employment, or access to food , water and clean environment, etc.
Being aware of the consequences of population explosion, the Government of Vindhya has
been making efforts to create awareness and sensitise people to settle for smaller family
norm.
In this direction, the government has introduced a number of birth control measures and
family planning programs. Also in the recent years, factors like increase in the cost of living,
economy status of the married couple have started to guide the exercise of their right of
procreation conservatively and consequently more and more of the married couple are now
content to beget one child or two children. Nevertheless, over population continues to be
conflagration- like- problem in our country.
The parliament of Vindhya in its wisdom and expertise felt a need for a suitable legislation to
enable economy and propitious use of our resources and proper upbringing of the children
The government has believed that this objective can be achieved only when people opt for a
small family norm. Accordingly, the government enacted a law titled “Population Control
Act 2017” to tackie growing socio-economic problems and to take certain imperative
besides effective steps to check the increasing growth of population.
1. The long title of this act states that this is an act which seeks to promote voluntary
sterilization among the married couple who have two children and also provides for
certain measures like fixing the minimum age for the marriages, promoting the small
family norm, and introduction of compulsory subject on population control in the school
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curriculum for promoting and inculcating small family norm in the future generation.
Section 1 states that this act applies throughout Vindhya with effect from 1st January 2017
2. Section 2 states that in this act, unless the context otherwise requires,-
(a) “Appropriate Government” means in the case of a state, the government of
the state and in other cases, the central government; and
(b) “Prescribed” means prescribed by rules made under this act
3. Under section 3, the central government is delegated with the power to take necessary
steps and measures to encourage, promote and motivate married couple to opt for small
family norm in order to have control over the rising population in the country
4. Section 4 confers benefits to couples who voluntary opt for sterilization as an incentive
for opting smaller family norm. this section states that “If either the husband or the wife
in case of a married couple, who have only two living children on the date of
commencement of this Act, voluntarily undergoes sterilization, Appropriate Government
shall provide them with the following benefits, namely:-
(i) Free education including higher education to one child and to the
second child, if any, born within one year from the date of
commencement of this act
(ii) Suitable employment to one child after he/she completes his/her
education; and
(iii) Dwelling unit at concessional rates as may be prescribed; and
(iv) Such other benefits as may be prescribed from time to time”
5. Section 5 obliged the Central Government to set up a Heath Care Centre in every village
and district of the country with a view to create awareness about population control
amongst the people. Every such health care centers shall disseminate information and
provide assistance to masses, with regard to population control.
6. Section 6 lays down,
(a) Any person who is serving in connection with the affairs of the Union
Government or of the State Government or in any undertaking or organization
under the control of the Central Government or the State Government, as the case
may be, and,-
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(i) who has only one living child or who has not procreated any child or
who is unmarried on the date of commencement of this Act, shall give
an undertaking that he/ she shall not procreate more than two living
children,
(ii) who has two living children on the date of this act coming into force,
shall given an undertaking that he/she shall not procreate third child.
(b) Any contraventions of the above conditions shall be punishable by subjecting the
person of the such disciplinary action and the following disadvantages:
(i) He/she shall be debarred from availing the facilities of public
distribution system;
(ii) He/she shall not be given medical facilities available free of cost to
citizens through, government hospitals and dispensaries;
(iii) He/she shall be debarred from availing such other facilities, as may be
prescribed.
(iv) He/she shall be disqualified from contesting elections or being a
member of legislature.
(v) He/she shall not be entitled for increment and promotion.
7. Section 7 confers benefits to those who follows the prescription made under this act. The
Appropriate Government shall provide a married couple who opts for one child norm by
way of sterilization, the following incentives, namely:-
(i) A dwelling unit on concessional rates, as may be prescribed;
(ii) Education including technical education to the child, free of cost;
(iii) One time out of turn promotion and also cash rewards of rupees seventy-five
thousand to government servants and those who are private service;
Provided that if the child is a girl child, couple shall be given cash reward f not
less than rupees one lakh in fixed deposits for a period of twenty years;
(iv) Employment to the child after completing education as per his/her ability and
qualification; and
(v) Two advance increments in their pay to government servants.
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8. Section 8 prescribes the minimum age for bride and the groom for entering into marriage.
It states “No marriage shall be solemnized between a male who is less than twenty seven
years of age and a female who is less than twenty –two years of age”.
9. Section 9 provides punishment, that is “any person who contravenes the provision of
section 8 shall be punished with simple imprisonment for a term which shall be not less
than five years and with fine which shall be not less than rupees twenty thousand”.
10. Section 10 states that the Appropriate Government shall introduce population control as a
compulsory subject in all the educational institution for all children who have attained the
age of fifteen years, irrespective of the class in which they are studying and the course
which they are pursuing.
11. Section 11 provides that notwithstanding anything contained in the Vindhya Penal Code
or any other law for time being in force, any married couple who procreates more than
three children, shall be punished with the imprisonment for a term which may extend to
one year or a fine which may extend to twenty-five thousand rupees or with both.
12. Section 12 authorises the Appropriate Governments to make rules for the implementation
of this act as may be required from time to time.
13. This Act has received a mixed bag of appreciation and criticisms, especially by the policy
makers, media persons, NGOs, civil societies and common persons. Mr. Ananda
Anantam Raju and Smt. Rashmi Jacob, both employees of the union government had
married about 12 years ago. The couple had opted for a small family norm because of job
transfers from one place to another and the couple had chosen not to subject themselves
for sterilization process. However, with this act coming into force, some of their
colleagues and a few of their relatives has availed the benefits under the act subjecting
themselves to the process of sterilization.
14. Mr. Ananda Anantam Raju and his wife sincerely felt that this legislative measure
should not have been introduced and the couple believed that this act amounts to
interference in the people’s freedoms and fundamental rights, including in the rights of
procreation, privacy, life and liberty and equality, etc.
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Thus, the aggrieved couple challenged the constitutionality of the said act by filing a writ petition
U/Art. 32 of the constitution of Vindhya before the apex court. The apex court admitted the said
writ petition and the matter is set out for final arguments.
ISSUES RAISED
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SUMMARY OF ARGUMENTS
Permissible classification.
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ARGUMENTS ADVANCED
Issue 1
It is most humbly submitted before this Hon’ble court that Art. 21 of the Constitution of
India has not been violated.
In the case of Jacobellis v. Ohio1, it was held that Right of privacy, like any other
individual right, cannot be absolute, and must, accordingly be subject to State regulation under
its police power, “to maintain a decent society”. This right to privacy is not absolute because the
intentions of that particular thing should be noted and then weighed in the balance as to which is
absolute i.e., Right to life or Right to privacy.
In the case of Suchita Srivatsava v. Chandigarh Administration,3 the court reasserted that
strict boundaries of ‘personal liberty’ cannot be identified but at the same time mandates that
such liberty must also accommodate public interest. Court has always given importance to
personal liberty of an individual. But, there comes certain situations and circumstance where it
should not be recognized exclusively. There must also be taken public interest which is much
more important than an individual’s interest.
1
(1964) 378 US 184(199).
2
1975 SCR (3) 946.
3
AIR 2010 SC 235.
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Population growth in the present scenario is growing at an alarming rate, which in turn is
affecting the growth and development of the country. Growth of population at this rate will harm
in each and every possible way i.e., in the field of employment, food production, poverty,
illiteracy etc. It is also the responsibility of the State to fulfil the growing demands of food
products, production which should be easily made available for general public. But the growth of
population is hampering in the development of the country and when there is a price rise, it is
again the government to be blamed. That is the sole reason legislature is taking some prevention
before it goes out of hand and trying to find the solution before it is too late.
The legislation does not interfere with the Right to life or for that matter right to family as
argued by the petitioners. Because no prohibition has been imposed to have a family including
children not exceeding one or two or three. It is only restricting larger family and to achieve what
is much needed in the current scenario. Since last 6to7 decades the population is constantly rising
beyond imagination. The ill effects of this rising population can be seen by way of
unemployment, pollution, increasing poverty, illiteracy etc. Therefore much needed changes in
the legislations and updates are required to combat this acute problem at hand.
In the case of Ash Mohammad v. Shiv Raj Singh,4 it has been held that individual liberty
cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in
anarchy or disorder in the society. In many cases judiciary has time and again gave importance to
individual liberty and has kept it at higher footing. At this point of time what should be
4
(2013)1 All LJ 222 (226) (SC).
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considered are the interests of the larger public and individual liberty should not accentuated to
the higher extent.
Therefore, it is most humbly submitted before this Hon’ble court that Art. 21 of the
Constitution has not been violated.
5
(2003)5 SCC 376.
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Issue 2
It is most humbly submitted before this Hon’ble Court that Art.14 of the Constitution of
India has not been violated.
Art. 14 states that equals should be treated equally and unequals should be treated
differently. Equality before law or equal protection of the laws does not mean the same treatment
to everyone. As no two human beings are equal in all respect, the same treatment to them in
every respect would result in unequal treatment.6 This exercise is expressed as reasonable
classification. Hence this Article has prohibited class legislation, but allows classification.
Equality is a dynamic concept which goes on changing with changing times and social contexts
and must be understood in that sense. 7 The principle of equality has been recently reiterated by
the Supreme Court in Badappanavar8in the following words:
“Equality is a basic feature of the Constitution of India and any treatment of equals
unequally or unequals as equals will be violation of basic structure of the Constitution of India.”
Art. 14 prescribe equality before law. But the fact remains that all persons are not equal
by nature, attainment or circumstances, and, therefore, a mechanical equality before the law may
result in injustice. Thus, the guarantee against the denial of the equal protection of law does not
mean that identically the same rules of law should be made applicable to all persons in spite of
difference in circumstances and conditions.9 The varying needs of different classes or sections of
people require differential and separate treatment.
A person setting up a grievance of denial of equal treatment by law must establish that
between persons similarly circumstanced, some were treated to their prejudice and the
differential treatment had no reasonable relation to the object sought to be achieved by the law. 10
6
V. N. Shukla’s., Constitution of India, 12th Ed. 2008, Eastern Book Company. (Pg. 49)
7
Bose J. in State of W. B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
8
M. G. Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264.
9
Chiranjeet Lal v. UOI, AIR 1951 SC 41.
10
R. K. Garg v. UOI, AIR 1981 SC 2138.
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Art. 14 forbids class legislation; it does not forbid reasonable classification of persons,
objects and transactions by the Legislature for the purpose of achieving specific ends.
Classification to be reasonable should fulfill the following two tests:
In the case of District Registrar and Collector v. Canara Bank 12, it was held that the right
to privacy is not absolute and there can be reasonable intrusion or reasonable restrictions if State
has reasonable basis or reasonable materials to support it and any such restriction should be
proportionate to the purpose sought to be achieved.
In the case of K. Thimmappa v. Chairman, Central Board of Directors 13it has been held
that,
“It is settled law that differentiation is not always discriminatory. If there is a rational
nexus on the basis of which differentiation has been made with object sought to be achieved by
the particular provision, then such differentiation is not discriminatory and does not violate the
principles of Art. 14 of the Constitution”.
11
Laxmi Kandsari v. State of UP, AIR 1981 SC 873, 891.
12
AIR 2005 SC 186.
13
AIR 2001 SC 467.
14
UOI V. M. V. Valliappan, (1999)6 SCC 259, 269.
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Several decisions of the Apex court say that intentions of Art. 14 is not to treat perfectly
equal it only needs that Equal should be treated alike and Unequals should be treated differently.
Everyone under this legislation is permitted to have the family and the present condition in the
State does not permit the unrestricted growth in the population. Unless legal restrictions are
brought, shows that the population growth has happened haphazardly which is not helping the
welfare of the Nation or society.
In any walk of life people need encouragement and certain rewards to achieve the much
needed result. Therefore for having small family, Government gives certain incentives for
encouraging it and so much needed steps are being taken within their ambit and not violating
Art. 14 of the Constitution.
Therefore, it is most humbly submitted before this Hon’ble court that Art. 14 has not
been violated.
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Issue 3
The torrential increase in the population in the country is one of the major hindrances in
the pace of Vindhya’s socio- economic progress. The Karunakaran population committee (1992-
93) had proposed certain disincentives for those who do not follow the norms of the
Development model adopted by National Public Policy so as to bring down the fertility rate. It’s
a matter of regret that though the Constitution of Vindhya is committed to social and economic
justice for all, yet Vindhya has entered the new millennium with the largest number of illiterates
in the world and the largest number of people below the poverty line. The laudable goals spelt
out in the Directive Principles of State Policy in the Constitution of Vindhya can best be
achieved if the population explosion is checked effectively. Therefore, the Population Control
Act, 2017 assumes a central importance for providing social and economic justice to the people
of Vindhya.
In the case of Inderjit Barua v. Assam,15 the court drew support for the below thesis for
the social contract theories of Locke and Hobbes and observed that, if to save hundreds of lives
one life is put in peril or if a law ensures and protects the greater social interest, then such a law
will be regarded as a wholesome and beneficial law although it may infringe liberty of some
individuals: “It will ensure for the liberty of the greater number of the members of the society at
the cost one or a few.”
Any change in the current scenario and laws are not easily accepted by the ordinary
people. Sometimes drastic steps need to be taken. The State has to take an active role in bringing
about the positive changes in the society. Today it is accepted that law is the means of social
change. Legal rules have to changed and amended to undertake and implement for achieving
better social changes. The main reason of giving incentives is that people will be rewarded and
so people if not accept it, might atleast think of it.
15
AIR 1983 Del. 513.
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Therefore they cannot be considered as contravening the Articles of for that Right to
family. If penal legislations are not there crimes or anti-social activities cannot be curtailed for
bringing about quick socio-economic changes, these restrictions are necessary and are not
infringing any Arts. Of the Constitution.
In the case of Minerva Mills Ltd. v. Union of India,16 it was held that “harmony and
balance between fundamental rights and directive principles is an essential feature of the basic
structure of the constitution.
Under Part IV of the Constitution it directs certain principles of State policy for the
welfare of the nation. Art. 47 of the Constitution states that Duty of the State to raise the level of
nutrition and the standard of living and to improve public health. Art. 38 states that ‘the State to
secure a social order for the promotion of the welfare of people and also deals about minimizing
the inequalities in income and endeavour to eliminate inequalities in status, facilities and
opportunities.
Vindhyan population is growing at a rate of 1.8% per annum. In order to achieve a given
rate of increasing per capita income, larger investment is needed. In Vindhya annual growth rate
of population is 1.8% and capital output ratio is 4:1. It means that in order to stabilize the
existing economic growth rate (4x 1.8)= 7.2% of the National income must be invested every
year, which adversely affects the growth rate of the economy.
The statistics regarding the population growth in the last decade and the growth at such a
rate clearly shows that much needed laws should be brought and the issue should be addressed as
soon as possible. If there are no any legislations governing the population control and not
penalizing the people not abiding by it, then there will be a time when population growth cannot
be controlled and the ill effects will be far more devastating.
Therefore it is most humbly submitted before this Hon’ble court that the Population
Control Act, 2017 is not unconstitutional.
16
AIR 1980 SC 1789, 1806.
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PRAYER
WHEREFORE, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, it is most humbly prayed before this Hon’ble Court to opine and pass:
And any other relief that this Hon’ble Court may be pleased to grant in the interest of
Justice, Equity and Good Conscience.
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