NLS T-28

Before

THE HONOURABLE SUPREME COURT OF HEMANAPATII

SLP (Civil) No. /2016

PETITION FILED UNDER ARTICLE 136 OF THE CONSTITUTION OF HEMANAPATII

IN THE MATTER OF

NAINA GUPTA PETITIONER

V.

UNION OF HEMANAPATII RESPONDENT 1

KODAI INFY SOLUTIONS PVT. LTD

RESPONDENT 2

MINISTRY OF HEALTH RESPONDENT 3

Filed and appearing on behalf of the Petitioner

--MEMORIAL DRAWN AND FILED BY THE COUNSEL ON BEHALF OF THE

PETITIONER--
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS....................................................................................................V
INDEX OF AUTHORITIES....................................................................................................VI
STATEMENT OF JURISDICTION.......................................................................................VII
STATEMENT OF FACTS.....................................................................................................VIII
ISSUES RAISED.....................................................................................................................IX
SUMMARY OF PLEADINGS.................................................................................................X
PLEADINGS..............................................................................................................................1
I. THE INSTANT PETITION IS MAINTAINABLE............................................................1
1.1 SCOPE OF ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950......................1
1.2 ART. 136 - SUBSTANTIAL QUESTION OF LAW & PUBLIC IMPORTANCE..........1
1.3 ART. 136 CONCERNS MATTERS OF GRAVE INJUSTICE........................................2
1.4 THE MATTER IS WITHIN THE AMBIT OF SPECIAL CIRCUMSTANCE................3
1.5 THERE EXISTS NO EQUALLY EFFICACIOUS ALTERNATE REMEDY.................3
II. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 14 OF THE
CONSTITUTION OF INDIA, 1950..........................................................................................4
2.1 AGE BASED RESTRICTION IS UNCONSTITUTIONAL...........................................4
2.2 NO NEXUS BETWEEN LEGISLATION AND OBJECT SOUGHT TO BE
ACHIEVED............................................................................................................................5
2.3 THE LEGISLATION REFLECTS ARBITRARY STATE ACTION...............................6
2.4 INDIVIDUALS ARE ENTITLED TO REPRODUCTIVE AUTONOMY.....................7
III. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 19 OF THE
CONSTITUTION OF INDIA....................................................................................................8
3.1 SURROGACY IS A ‘TRADE’ AND HENCE CAN BE REGULATED BY ARTICLE
19(1)(G) OF THE CONSTITUTION OF INDIA..................................................................8
3.2 PROHIBITION OF COMMERCIAL SURROGACY IS NOT REASONABLE............9
3.2.1 TOTAL PROHIBITION IS NOT REASONABLE...................................................9
3.2.2 PROHIBITION IS NOT IN INFURTHERANCE OF PUBLIC INTEREST............9
3.2.3 RESTRICTIONS SHOULD BE WITHIN THE SPHERE OF ARTICLE 19(6)......9
3.3 MARITAL STATUS CANNOT BE A GROUND FOR RESTRICTION......................10
Filed and appearing on behalf of the Petitioner

3.4 UNJUST RESTRICTION BASED ON INVOLUNTARY CIRCUMSTANCES..........11

3.4.1 ‘CLOSE RELATIVE’ CLAUSE IS VAGUE IN NATURE.....................................11
3.4.2 SCOPE OF THE LIMITATION...............................................................................11
3.5 PUBLIC MORALITY CANNOT OUTWEIGH DEVELOPMENT.............................11
IV. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 21 OF THE
CONSTITUTION OF INDIA..................................................................................................12
4.1 ARTICLE 21 INCLUDES A WIDE ARRAY OF RIGHTS...........................................13
4.2 PROCEDURE ESTABLISHED BY LAW ENVISAGED UNDER ARTICLE 21........13
4.2.1 ‘PROCEDURE ESTABLISHED BY LAW’...........................................................13
4.2.2 INCORPORATION OF ‘DUE PROCESS’ INTO NATIONAL JURISPRUDENCE
..........................................................................................................................................14
4.2.3 PROCEDURE ESTABLISHED MUST BE ‘JUST, FAIR AND REASONABLE’14
4.3 ARTICLE 21 CONTEMPLATES REPRODUCTIVE AUTONOMY...........................15
4.4 THE RIGHT TO LIVELIHOOD CANNOT BE CIRCUMSCRIBED..........................16
4.5 ARTICLE 21 INCLUDES RIGHT TO LIVELIHOOD.................................................17
4.5.1 RIGHT TO HEALTH OF THE COMMISSIONING PARENTS IS VIOLATED. .17
4.5.2 PRINCIPLES OF INTERNATIONAL COVENANTS MUST BE KEPT IN MIND
..........................................................................................................................................17
V. THE ADMINISTRATIVE ACTION TAKEN AGAINST THE PETITIONER
VIOLATES THE PRINCIPLES OF NATURAL JUSTICE....................................................18
5.1 THE PETITIONER’S DISMISSAL FROM SERVICE IS IN DEFIANCE OF
PRINCIPLES OF NATURAL JUSTICE.............................................................................18
5.1.1 PRINCIPLE OF AUDI ALTERAM PARTEM SHALL APPLY................................18
5.1.2 APPLICABILITY OF THE PRINCIPLES OF ‘ NATURAL JUSTICE’................19
5.2 PETITIONER’S DISMISSAL FROM SERVICE VIOLATES THE PRINCIPLE OF
ARTICLE 21........................................................................................................................19
5.3 THE PETITIONER IS ENTITLED TO MATERNITY BENEFITS..............................20
PRAYER.................................................................................................................................XII

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Filed and appearing on behalf of the Petitioner

LIST OF ABBREVIATIONS

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Filed and appearing on behalf of the Petitioner

INDEX OF AUTHORITIES

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STATEMENT OF JURISDICTION

THE PETITIONER MOST HUMBLY AND RESPECTFULLY SUBMITS THIS MEMORANDUM UNDER
ARTICLE 1361 OF THE CONSTITUTION OF INDIA, 1950.

1 136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any
court or tribunal constituted by or under any law relating to the Armed Forces

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Filed and appearing on behalf of the Petitioner

STATEMENT OF FACTS

I. BACKGROUND OF THE CASE

In January 2015, the republic of Hemanapatii enacted the Surrogacy (Regulation) Act, 2015
to regulate surrogacy services in the country, to prohibit potential exploitation of surrogate
mothers and protect the rights of children born through surrogacy. Neeti Bhatt, the Petitioner,
a married citizen of Hemanapatii who lives with her husband and a 7 year old boy who is
suffering from cerebral palsy discovers one day, that she cannot beget a child anymore. She
meets her half-sister Naina Gupta, who works as a System Engineer in Kodai Infy Solutions.
Pvt. Ltd. (KIS). She shares with Naina her grief about her inability to beget another child
who, being very close to Neeti since childhood decides to bear the child for Neeti despite
having a child of her own. By April 2016, all medical procedures and legal formalities
required for Naina to be the surrogate mother were complied with. In the 12th week of
Naina's pregnancy,the doctors informed that the foetus had some mental defects. Neeti
requests Naina to terminate her pregnancy, but Naina decides not to. Meanwhile, it was
discovered that that Naina’s marriage was void ab initio owing to her Sapinda relationship
with her husband. Neeti tells Naina that she is no longer eligible to be a surrrogate mother
and insists that she aborts the child. Naina is reluctant do so.

II.CAUSE OF DISPUTE

After Naina’s non-compliance, Neeti files a petition before the High Court of Kuttapattu
seeking an order of abortion and an injunction to stay the surrogacy arrangement. The High
Court rules against Naina who is in her 15th week of pregnancy. In the meantime, Naina
overhears a conversation between her boss and his secretary about how she is a woman of
questionable character. Provoked by what her boss said, she had a quarrel with her boss.
Subsequently, she was dismissed from service and her application for Maternity benefits was
rejected leaving, her in a miserable situation.

III. RELIEF SOUGHT

Aggrieved by the decision of the High Court and the withdrawal of her maternity benefits,
Naina who is now in her 20th week of pregnancy, approaches the Supreme Court of
Hemanapatii under a Special Leave Petition (SLP) in which she also challenges the
constitutionality of Section 4(iii)(b) of the Surrogacy (Regulation) Act, 2015.

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ISSUES RAISED

I. WHETHER THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE ?

II. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2016

VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA?

III. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2016

VIOLATES ARTICLE 19 OF THE CONSTITUTION OF INDIA?

IV. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2016

VIOLATES ARTICLE 21 OF THE CONSTITUTION OF INDIA?

V. WHETHER THE ADMINISTRATIVE ACTION TAKEN AGAINST THE PETITIONER

VIOLATES T HE P RINCIPLES OF NATURAL J USTICE ?

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Filed and appearing on behalf of the Petitioner

SUMMARY OF PLEADINGS

I. WHETHER THE INSTANT SPECIAL LEAVE PETITION IS MAINTAINABLE ?

It is humbly submitted that the present matter demands interference by the Supreme Court
in matters confined to grave injustice, special circumstances present and the presence of a
substantial question of law relating to natural justice. The appellant is left with no
alternative efficacious remedy, than to move this Hon'ble Court under Article 136 of the
Constitution which vests it with a plenary jurisdiction in the matter of entertaining and
hearing appeals, by granting of special leave. It violates her basic rights of life and
personal liberty which is an irreparable act of injustice being inflicted on the petitioner
which must be cured by this court by exercising its jurisdiction under Article 136 of the
Constitution of India.

II. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2016

VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA?

It is humbly submitted before this Hon'ble Court that Section 4(iii)(b) of the Surrogacy
(Regulation) Bill stands in violation of the Right to Equality guaranteed under Article 14
of the Indian Constitution. The abovementioned clause discriminates on the grounds of
marital status and age of the surrogate mother which does not have a reasonable nexus
with the object sought to be achieved by the Bill. The categorization fails the twin test of
reasonable classification i.e. Intelligible differentia and Reasonable nexus and is therefore
arbitrary, evasive and unconstitutional.

III. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2015

VIOLATES ARTICLE 19 OF THE CONSTITUTION OF INDIA?

It is humbly submitted that section 4(iii)(b) of the Surrogacy (Regulation) Act, 2015
curtails the practice of surrogacy as a trade. The restrictions imposed on this trade are

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beyond the ambit of reasonableness, not in the interest of the general public and lie outside
the domain of Article 19(6). Certain limitations are based on involuntary circumstances
which are clearly arbitrary and unjust. Further public morality shall not be a reason to
retard the development rate.

IV. WHETHER SEC. 4(III)(B) OF THE SURROGACY (REGULATION) ACT, 2015

VIOLATES ARTICLE 21 OF THE CONSTITUTION OF INDIA?

It is respectfully submitted that section 4(iii)(b) of the Surrogacy (Regulation) Act, 2015
violates Article 21 of the Constitution of India. The sweep of Article 21 is very wide and it
is not limited to explicit rights. Moreover, the impugned section of the Act violates the
right to livelihood of the surrogates and is also violative of the right to health, guaranteed
under Article 21, of the commissioning parents.

V. WHETHER THE ADMINISTRATIVE ACTION TAKEN AGAINST THE PETITIONER

VIOLATES T HE P RINCIPLES OF NATURAL J USTICE ?

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PLEADINGS

I. THE INSTANT PETITION IS MAINTAINABLE

It is humbly submitted before the Hon'ble Supreme Court that the present appeal is
maintainable under Article 136 of the Constitution of India, 1950.

1.1 SCOPE OF ARTICLE 136 OF THE CONSTITUTION OF INDIA, 1950.

The powers given by Article 136 are in the nature of special or residuary powers which are
exercisable outside the purview of the ordinary law relating to appeal, in case where needs of
justice demand interference by the Supreme Court of the land 2. Even where a statute provides
for finality to its decisions, the power of Supreme Court under Article 136 to grant special
leave can still be exercised, which power cannot be taken away. 3The Supreme Court has
characterized its power under Article 136 as “an untrammelled reservoir of power incapable
of being confined to definitional bounds; the discretion conferred on the Supreme Court
being subjected to only one limitation, that is, the wisdom and good sense of justice of the
judges.”4 It is, however, plain that when the Supreme Court reaches the conclusion that a
person has been dealt with arbitrarily or that a court or tribunal has not given a fair deal to a
litigant, then no technical hurdles of any kind like the finality of finding of facts, or otherwise
can stand in the way of the exercise of this power. 5The instant matter thus comes under the
scope of Article 136 of the Constitution of India.

1.2 ART. 136 - SUBSTANTIAL QUESTION OF LAW & PUBLIC IMPORTANCE.

A constitution bench while explaining the importance of "substantial question of law",
observed; “The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or whether it
directly and substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy Council or by
the Federal Court or is not free from difficulty or calls for discussion of alternative views.” 6
It is submitted that, the present facts in issue satisfy all of the above mentioned criteria. The
case involves the matter of general public importance and it directly and substantially affects
the rights of the petitioner. The Supreme Court is not precluded from going into the question

2Durga Shankar v. Raghu Raj, AIR 1954 SC 520

3Diwan Bros. v. Central Bank of India, AIR 1976 SC 1503
4Kunhayammed v. State of Orissa, AIR 2000 SC 2587, 2593
5Dhakeshwari Cotton Mills Ltd.v. CIT, AIR 1955 SC 65
6Sir Chunilal Mehta and Sons, Ltd. v Century Spinning and Manufacturing Co. Ltd. (1962) AIR 1314(SC)

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of facts under article 136, if it considers it necessary to do so 7.Article 136 uses the wording
‘in any cause or matter’8. This gives widest power to this court to deal with any cause or
matter. It is, plain that when the Supreme Court reaches the conclusion that a person has been
dealt with arbitrarily or that a court or tribunal has not given a fair deal to a litigant, then no
technical hurdles of any kind like the finality of finding of facts, or otherwise can stand in the
way of the exercise of this power9. The jurisdiction conferred under Article 136 on the
Supreme Court is a corrective one and not a restrictive one.10 The power of the Supreme
Court in this regard is to be invoked in exceptional circumstances as when a question of law
of general public importance arises. It was observed that this article has not hindered the
court from leaping into resolution of individual controversies once it has been brought to its
notice that the case has failed to deliver substantial justice or has perpetuated grave injustice
to parties or is one which shocks the conscience of the court or suffers on account of
disregard to the forms of legal process or with violation of the principles of natural justice. It
is an overriding power whereunder the court may generously step in to impart justice and
remedy injustice.11All matters involving substantial questions of law relating to the
interpretation of the Constitution of India, or of national or public importance, validity of
Central or State laws and action, qualify for being entertained under Article 136. 12Leave will
be granted in cases where there is a substantial question of law involved which needs to be
finally laid at rest by it for the entire country or where there is grave, blatant and atrocious
miscarriage of justice.13 The present matter too involves a question of law.

1.3 ART. 136 CONCERNS MATTERS OF GRAVE INJUSTICE.

Where the impugned order is ex facie bad or illegal or manifestly wrong, leave is granted.14
In the case of Leave is also granted in cases where the decision challenged has disregarded
the form of legal process or there is some violation of principles of natural justice and where

7Kathi Raning Rawat v. The State of Saurashtra (1952) AIR 991 (All); Achyut Adhicary v. West Bengal, (1963)
AIR 1039 (SC).
8Pritam Singh v. The State, (1950) AIR 169 (SC)
9Sripur Paper Mills v. Commr. of Wealth Tax (1970) AIR1520 (SC); Om Prakash Sood v. UOI, (2003) 7 SCC
473(SC).
10Haryana State Industrial Corpn. v. Cork Mfg. Co., (2007) 8 SCC 120.
11Narpat Singh v. Jaipur Development Authority, AIR 2002 SC 2036; N.Suriyakala v. A. Mohandoss, (2007) 9
SCC 196; Mohammad Khalil Chisti v. State of Rajasthan, 2013 CrLJ 637 (649) (SC); Sambhu Das v. State of
Assam, (2010) 10 SCC 374.
12Mathai @ Joby v. George & amp; Anr, (2010) 4 SCC 358.
13Bihar Legal Support Society v. Chief Justice of India, AIR 1987 SC 38
14Shail v. Manoj Kumar, (2004) 4 SCC 785; Benu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC
195; Sirpur Paper Mills v. Commissioner of Wealth Tax, AIR 1970 SC 1520; Sadhu Singh Harnam Singh v.
State of Pepsu, AIR 1954 SC 271.

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substantial and grave injustice has been done. 15 The petitioner humbly submits that such
grave injustice warrants the exercise of power by the Hon'ble Supreme Court under Article
136. "It's [Article 136] limit, when it chases injustice, is the sky."16 In Esher Singh v. State of
A.P.17, it was said that when the judgment of the High Court has led to a serious miscarriage
of justice18, the Supreme Court may not refrain from doing its duty and abstain from
interfering.19 The principle is, the Supreme Court would never do injustice nor allow injustice
being perpetrated for the sake of upholding technicalities20.

1.4 THE MATTER IS WITHIN THE AMBIT OF SPECIAL CIRCUMSTANCE.

Article 136 of the Constitution vests wide discretionary power in the Supreme Court which is
to be exercised sparingly and in exceptional cases only. By virtue of this Article, the Supreme
Court can grant special leave to appeal in 'any cause or other matter'- civil, criminal or
otherwise, and from any court or tribunal in India. The only uniform standard that can be laid
down regarding these variety of cases is that the power shall be exercised sparingly and only
where special circumstances21are shown to exist. It was observed; “Having regard to the wide
scope of the powers conferred on this court under Article 136, it is not possible and, indeed,
it would not be expedient, to lay down any general rule which would govern all cases. The
question as to whether the jurisdiction of the Court under Article 136 should be exercised or
not, and if yes, on what terms and conditions, is a matter which this court has to decide on
the facts of each case.”22 In the instant matter, special circumstances are shown to exist as the
petitioner is denied her fundamental rights.

1.5 THERE EXISTS NO EQUALLY EFFICACIOUS ALTERNATE REMEDY.

The rule of exhaustion of remedies, is not inflexible or rigid as it is a self-imposed restriction.
This means that the Supreme Court may relax it if special circumstances are present. 23In the
case of Indo- China Steam Navigation Co. v. Jasjit24, the Supreme Court heard an appeal
directly from the order of the Collector of Customs, without exhausting the statutory
remedies available, as it raised some important points of law. In the present matter as well
15Sanwat Singh v. State of Rajasthan, AIR 1961 SC 715.
16Basu D.D., page 5754, Volume 5; LexisNexis ButterworthsWadhwa, Edition 8, 2009.
17AIR 2004 SC 3030.
18Chikkrange Gowda v. State of Mysore, AIR 1956 SC 731; Om Prakash Sood v. UOI, (2003) 7 SCC 473.
19Durga Shankar v. Raghuraj, AIR 1954 SC 520.
20Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
21Ram Saran Das & amp; Bros. v. Commercial Tax Officer, AIR 1962 SC 1326.
22Benu Balakrishna Iyer v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195.
23Bal Ram Prasad Rawat v. State of Uttar Pradesh, AIR 1981 SC 1575; S.G. Chemicals & Dyes Trading
Employees' Union v. S.G. Chemicals & Dyes Trading Ltd., (1986) 2 SCC 624; M.V. "ValiPero" v. Fernandeo
Lopez, AIR 1989 SC 2206.
24AIR 1964 SC 1140

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both the conditions are satisfied- (i) Comes under the ambit of special circumstances and (ii)
the present matter raises some important questions of law. Similarly in Ghodawat Pan
Masala Products (I) Ltd. and Anr. v. State of Maharashtra and Ors.25, the constitutional
validity of Section 3-B of the Maharashtra Tax on Luxuries Act, 1987 was challenged and the
leave was granted.

II. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 14 OF THE

CONSTITUTION OF INDIA, 1950.
It is humbly submitted before the Hon'ble Court that Section 4(iii)(b) of the Surrogacy
(Regulation) Bill violates Article 14 of the Indian Constitution. "Equality is one of the
magnificent corner-stones of Indian democracy."26 Even a constitutional amendment
offending the Right to Equality will be declared invalid. Neither the Parliament nor any State
legislature can transgress the principle of Equality. 27 This principle has been recently
reiterated by the Supreme Court in Badappanavar28 case as; “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.” It is humbly submitted that equal
protection means the right to equal treatment in similar circumstances 29, both in the privileges
conferred and in the liabilities imposed. Implicit in the concept of equality is the concept that
equal persons cannot be treated as unequals 30. The basic principle underlying Article 14 is
that the law must operate equally on all persons under like circumstances.31 Differential
Treatment does not per se constitute violation of Article 14. It denies equal protection only
when there is no reasonable basis for the differentiation.32

2.1 AGE BASED RESTRICTION IS UNCONSTITUTIONAL.

In Indian Council of Legal Aid and Advice v. Bar Council of India33, The Apex Court
declared the rule of BCI barring persons aged above 45 years to be discriminatory,
unreasonable and arbitrary and thus violates Art. 14. In Air India v. Nergesh Meerza34, a

25 (2005) 4 SCC 415

26Indra Sawhney v. Union of India, AIR 1993 SC 477, Natural Resources Allocations, In Re Special Reference
No. 1 of 2012, (2012) 10 SCC 1 (77).
27Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Indra Sawhney v. Union of India (II), AIR 2000
SC 498.
28M.G. Badappanavar v. State of Karnataka, AIR 2001 SC 260, at 264.
29 Shri Kishan Singh v. State of Rajasthan, 1955 (2) SCR 531.
30 State of Punjab v. Balkaran Singh, (2006) 12 SCC 709.
31 M. Nagraj v. Union of India, (2006) 8 SCC 212, 270.
32 Ashoka Smokeless Coal India (P.) Ltd. v. Union of India, (2007) 2 SCC 640.
33AIR 2004 SC 361
34AIR 1981 SC 1829

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regulation was held unconstitutional made by Air India International which fixed the normal
age of retirement of air hostesses at 35 years, but authorized the managing director to extend
the same to 45 years. The Government of India raised the age of compulsory retirement from
55 to 58 years. The respondent was not given the benefit of this decision. The Court quashed
the order holding it to be a violation of Article 14. 35 In Budhan Choudhry and Ors. v. The
State of Bihar36, it was said; “It is now well-established that while Article 14 forbids class
legislation, it does not forbid reasonable classification for the purposes of legislation In
order, however, to pass the test of permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from others left out of the group and
(ii) that that differentia must have a rational relation to the object sought to be achieved by the
statute in question.” If either of the two tests of intelligible differentia and nexus is not
satisfied, the statute must be struck down as violative of Article 14.37

2.2 NO NEXUS BETWEEN LEGISLATION AND OBJECT SOUGHT TO BE ACHIEVED

A reasonable nexus between stringency of the provision and the purpose sought to be
achieved must exist.38 The rationale underlying this proposition is that unbridled discretionary
power may degenerate into arbitrariness, or may result in discrimination and, thus,
contravenes Art. 14 of the Indian Constitution.39 This plausibly violates the ‘right to
reproductive autonomy’ as laid down in B.K. Parthasarathi v. Government of Andhra
Pradesh40. The National Guidelines for Accreditation, Supervision and Regulation of
Artificial Reproductive Technology (ART) Clinics in India, 2005 issued by the Indian
Council of Medical Research, permits single women to use ART. In addition, the Hindu
Adoptions and Maintenance Act and the Juvenile Justice (Care and Protection of Children)
Act, 2015 permits conditional adoption for single and divorced persons. There appears to be
no element of prudence in allowing single people to adopt while prohibiting them from
opting for surrogacy.41Also, by virtue of the fact that being LGBT or being in a live-in
relationship is not illegal per se, disallowing the right to choice vis-à-vis surrogacy is a sheer
violation of their right to equality guaranteed under Article 14.42 This provision appears as an

35Union of India v. Mool Chand, AIR 1971 SC 2369.

36 (1955) 1 SCR 1045; Dharam Dutt and Ors. v. Union of India and Ors., (2004) 1 SCC 712
37Kangshari v. State of W.B., AIR 1960 SC 457 (460)
38District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496.
39Jain, M.P., Indian Constitutional Law, page 1014; LexisNexis, Edition 7, 2014.
40AIR 2000 AP 156, at 159.
41http://indianexpress.com/article/opinion/columns/surrogacy-bill-ban-commercial-2998128/
42 https://thewire.in/64656/why-the-government-needs-to-rethink-the-surrogacy-bill/

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imposition by a police state on the rights of a couple to procreate through the means of their
choice.43 It is for a person and not the state to decide modes of parenthood. The proposed Bill
has a provision that couples should have tried natural modes of childbirth before accessing
surrogacy which won’t be permitted as the first option. This goes against the individual
autonomy guaranteed to all citizens by the Constitution. 44 Article 14 is designed to prevent
discrimination. It seeks to prohibit a person or class of persons from being singled out from
others similarly situated or circumstanced for the purpose of being specially subjected to
discrimination by hostile legislation.45

2.3 THE LEGISLATION REFLECTS ARBITRARY STATE ACTION.

Article 14 out-laws arbitrary administrative action. When there is arbitrariness in state action,
Art. 14 springs into action and the courts strike down such action. Arbitrary state action
infringes Art. 14.46As has been explained by BHAGWATI. J., in Bachan Singh v. State of
Punjab,47 "Wherever we find arbitrariness or unreasonableness there is denial of rule of
law." Art. 14 enacts primarily a guarantee against arbitrariness and inhibits state action,
whether legislative or executive, which suffers from the vice of arbitrariness. "Every state
action must be non-arbitrary and reasonable. Otherwise, the court will strike it down as
invalid."48 In Motor General Traders v. State of Andhra Pradesh 49, the Supreme Court has
observed; “What was once a perfectly valid legislation may, in course of time, become
discriminatory and liable to challenge on the ground of its being violative of Art. 14.” In
course of time, Art. 14 has evolved into a very meaningful guarantee against any action of the
Administration which may be arbitrary, discriminatory or unequal 50. As Bhagwati, J., has
observed; "The law always frowns on uncannalised and unfettered discretion conferred on
any instrumentality of the State."51 The Supreme Court has laid down the applicable principle
in the following words in Naraindas v. State of Madhya Pradesh52; “Article 14 ensures
equality before law and strikes at arbitrary and discriminatory state action....If power

43http://indianexpress.com/article/india/india-news-india/govt-to-make-commercial-surrogacy-illegal-panel-to-
decide-on-cases-of-infertile-couples/
44http://indianexpress.com/article/opinion/columns/surrogacy-bill-ban-commercial-2998128/
45U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra, (2008) 10 SCC 139.
46A.P. Aggarwal v. Govt. of NCT of Delhi, AIR 2000 SC 205.
47AIR 1982 SC 1336; E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555; Maneka Gandhi v. Union of
India, AIR 1978 SC 597; Ramana D. Shetty v. International Airport Authority, AIR 1979 SC 1628; Ajay Hasiya
v. Khalid Mujib, AIR 1981 SC 487.
48Basu, D.D., Page 1392 Volume 2; LexisNexis ButterworthsWadhwa, Edition 8, 2009.
49AIR 1984 SC 121; Rattan Arya v. State of Tamil Nadu, AIR 1986 SC 1444.
50Shrinivasa Rao v. J. Veeraiah, AIR 1993 SC 929; R.L. Bansal v. Union of India, AIR 1993 SC 978
51Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877. Ajit Kumar Nag v. GM (PJ) Indian Oil Corpn.
Ltd., (2005) 7 SCC 764.
52AIR 1974 SC 1232.

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conferred by statute on any authority of the State is vagrant and unconfined and no standards
or principles are laid down by the statute to guide and control the exercise of such power, the
statute would be violative of the equality clause, because it would permit arbitrary and
capricious exercise of power, which is the antithesis of equality before law.” The aim of the
Article 14 is to ensure that invidious distinction or arbitrary discrimination shall not be made
by the State between a citizen and a citizen who answers the same description and the
differences which may obtain between them are of no relevance for the purpose of applying a
particular law reasonable classification is permissible.53 Our Constitution confers certain
rights on every human being and certain other rights on citizens. Every person is entitled to
equality before Law54 the legislature cannot validly enact a provision conferring naked or
arbitrary power on the Administration to be exercised by it in its absolute discretion.55

2.4 INDIVIDUALS ARE ENTITLED TO REPRODUCTIVE AUTONOMY

It is for the person and not the state to decide modes of parenthood. It is the prerogative of
person(s) to have children born naturally or by surrogacy in which the state, constitutionally,
cannot interfere.56 Section 4(iii) of the Surrogacy regulation act, 2016 does not appear to
qualify the test of equality (article 14), or of being a reasonable classification, satisfying the
objective sought to be achieved.57 By limiting the option of surrogacy to legally married
couples, the government is countering the acceptability of live-in relationships and setting a
wrong precedent.58 This Court itself has from time to time clarified, especially in the case of
L.I.C. of India v. Consumer education & Research Centre 59that “The State… enjoined in a
manner that is fair, just and equitable, after taking objectively all the relevant options into
consideration and in a manner that is reasonable, relevant and germane to effectuate the
purpose of public good and in general public interest and it must not take any irrelevant or
irrational factors into consideration or appear arbitrary in its decision.” The Court can
interfere for the violation of Article 14 when the exercise of discretion is made with oblique
ends or without applying the mind to relevant considerations60

53T. Devadasan v. Union of India, AIR 1964 SC 179; Naujamma v. State of Karnataka, 1999 AIHC 3003
(Kant).
54Faridabad CT Scan Centre v. Director, General of Health Services, AIR 1997 SC 3801. Govt. of A.P. v. C.
Kondapi, AIR 1992 AP 324; Govind A. Mane v. State of Maharashtra, AIR 2000 SC 1576.
55Bachan Singh v. State of Punjab, (1982) 3 SCC 24.
56http://indianexpress.com/article/opinion/columns/surrogacy-bill-ban-commercial-2998128/
57http://www.dailyo.in/politics/commercial-surrogacy-bill-india-adoption-infertility-parenting-
pregnancy/story/1/12598.html
58http://www.thehindu.com/thread/politics-and-policy/article9090866.ece
59L.I.C. of India v. Consumer education & Research Centre, (1995) 5 SCC 482 (para 27).
60State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 (para 8-9); Indian Express newspapers, Bombay v. UOI,
(1985) 1 SCC 641.

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 Filed and appearing on behalf of the Petitioner

III. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 19 OF THE

CONSTITUTION OF INDIA.

3.1 SURROGACY IS A ‘TRADE’ AND HENCE CAN BE REGULATED BY ARTICLE

19(1)(G) OF THE CONSTITUTION OF INDIA.
It is humbly submitted that the practice of surrogacy falls under the ambit of the word ‘trade’,
included in Article 19(1)(g). The definition of the word ‘trade’ was put forward in the matter
of Harendra H. Mehta and Ors v. Mukesh H. Mehta and Ors61 wherein it was accepted that
the definition of trade stands in resonance with the definition of the same as per Black’s Law
Dictionary which states that; “The act or the business of buying and selling for money;
traffic; barter62. Purchase and sale of goods and services between businesses, state or
nations. Trade is not a technical word and is ordinarily used in three senses:(1) in that of
exchanging goods or commodities by barter or by buying and selling for money; (2) in that of
a business occupation generally; (3) in that of a mechanical employment, in
contradistinction to the learned professions, agriculture, or the liberal arts 63.Trade is an
occupation or regular means of livelihood and is business one practises or the work in which
one engages regularly - One's calling; occupation; gainful employment; means of
livelihood64. The word ‘trade’ may include all the connotations of the word ‘business’ 65.
According to Halsbury, the word ‘trade’ is ‘any business carried on with a view to profit
whether manual or mercantile, as distinguished from the liberal arts or learned professions
and agriculture.’66Hence, it clearly indicates that the practice of Commercial Surrogacy67 is a
trade. It has been held that it is not essential to a ‘trade’ that the persons carrying it on should
make, or desire to make, a profit68. Hence, Altruistic Surrogacy69, also falls under the category
of ‘trade’.

61(1995) 5 SCC 108.

62May v. Sloan, 101 US 231 (1879) : 25 L.Ed 797.
63People v. Polar Vent of America Inc., 10 Misc 2d 378 : 174 NYS 2d 789, 793.
64People v. Carr, 163 Cal App 2d 568 : 329 P 2d 746,752.
65Khoday Distillaries Ltd. v. State of Karnataka, (1995) 1 SCC 574.
66 State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
67Art.2(f), The Surrogacy (Regulation) Act, 2015.
68Re. Law Reporting Council, 22 QBD 279.
69Art.2(b), The Surrogacy (Regulation) Act, 2015.

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3.2 PROHIBITION OF COMMERCIAL SURROGACY IS NOT REASONABLE

3.2.1 TOTAL PROHIBITION IS NOT REASONABLE

It is humbly submitted that complete prohibition of commercial surrogacy does not comply
with the doctrine of reasonable restriction. In the matter of State of Gujarat v. Mirzapur
Moti Kureshi Kassab Jamat70; followed several other cases71,it was discussed that whether a
restriction in effect amounts to a total prohibition is a question of fact and it was held that
such determination shall have to be made with regard to: (a) the facts; (b) the ambit of the
right; and (c) and the effect of the restriction upon the said right. Additionally, where it is a
total prohibition, such prohibition must also satisfy the test that a lesser alternative would be
inadequate. Further, similar surrogacy laws in developed countries like Russia72 , Greece and
several states of the U.S.A.

3.2.2 PROHIBITION IS NOT IN INFURTHERANCE OF PUBLIC INTEREST

Reasonable restrictions can be imposed by the State in the interests of the general public. 73 In
the matter of Orissa Textile & Steel Ltd. v. State of Orissa74 it was discussed that where
restrictions are imposed on freedom of trade and business to implement the Directive
Principles of State Policy, it has to be regarded to be in the interest of the general public.
Article 38(2) of the Constitution - states that the State shall endeavour to minimise and
eliminate inequalities in opportunities, which is clearly infringed by section 4(iii)(b) of the
Surrogacy (Regulation) Act, 2015.

3.2.3 RESTRICTIONS SHOULD BE WITHIN THE SPHERE OF ARTICLE 19(6).

The expression “reasonable restriction” signifies that the limitation on the right should not be
arbitrary or excessive in nature and it has to strike a proper balance between the freedom
under Article 19(1)(g) and social control permitted by Article 19(6)75 which is missing in the
impugned section of the act and the prohibition stands in contravention of the said principle
and is clearly arbitrary. Similarly, in the matter of Nagar Rice Milling v. Teekappa76 it was
stated that restrictions imposed by the State upon the freedom guaranteed by Article 19(1)(g)
cannot be justified on any ground outside clause (6) and the said clause addresses that the
70(2005) 8 SCC 534.
71Sushila Saw Mill v. State of Orissa, (1995) 5 SCC 615; Pratap Pharma Pvt. Ltd. v. Union Of India, (1997) 5 .
SCC 87.
72Svitnev K, Legal regulation of assisted reproduction treatment in Russia. Reprod. Biomed. Online. 20 (7):
892–4. Doi(:10.1016/j.rbmo.2010.03.023. PMID 20435519.) (June 2010).
73Ramchand v. Union Of India, AIR 1963 SC 563.
74AIR 2002 SC 708.
75Commercial and Ahmedabad Mills v. Union Of India, AIR 1993 Guj 20.
76AIR 1971 SC 246.

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reasonable restriction should be in the interest of the general public. Public morality must
give recognition to surrogacy because it creates opportunity for endless barren mothers to get
the joy of motherhood, which definitely lies within the interests of the general public 77, which
is negated by the impugned clause of the act in question, hence, the restriction cannot be
justified. In Chintaman Rao v. State of M.P78, the prohibition was however, held to be
unreasonable because it was in excess of the object in view and was drastic in nature and
these circumstantial situation resonates with the impugned act in question in the instant
matter. In order to determine the reasonableness of the restriction regard must be had to the
nature79 of the business and the conditions prevailing in that trade, and the interest of the
general public sought to be secured by imposing the restriction80. The step towards legalising
commercial surrogacy should be congratulated because this decision finally catches up with
time and in no way it is offensive and injurious 81. Constitutional morality must outweigh the
argument of public morality, even if it be the view of majority 82. Therefore prohibition of
commercial surrogacy is not constitutional.

3.3 MARITAL STATUS CANNOT BE A GROUND FOR RESTRICTION

Section 4(iii)(b)(I) of the Surrogacy (Regulation) Act, 2016 states that; “no woman, other
than an ever married woman having a child of her own and between the age of 25 to 35
years on the day of implantation, shall be a surrogate mother or help in surrogacy by
donating her egg or oocyte or otherwise;”. It asserts that the surrogate mother has to be a
woman who is married and is not childless. The courts and legislatures of various countries
now began to think, that denying certain benefits to a certain class of persons on the basis of
their marital status is unjust where the need of those benefits is felt by both unmarried and
married individuals83.. In the matter of Eisenstadt v. Baird84, the Supreme Court invalidated a
statute, which differentiated between married and unmarried people, on the ground that it
violated the equal protection clause as the Court found no rationale or legitimate distinction
between the sexual freedom of married and unmarried persons. The rationale to mandate such

77Babu Sarkar, Commercial Surrogacy: Is It Morally and Ethically Acceptable in India?, (2011) PL December
S-11.
78AIR 1951 SC 118; Romesh Thappar v. State of Madras, ; Papnasam Labour Union v. Madura Coats Ltd. and
Anr., (1995) 1 SCC 501; Union of India v. G. Ganayuthanm, (1997) 7 SCC 463; Cellular Operators Assn. of
India v. TRAI, (2016) 7 SCC 703.
79Cooverjee B. Bharuchav. Excise Commr., 1954 SCR 873.
80Hathisingh Mfg. Co v. Union Of India, (1960) 3 SCR 528 ; Ajit Singh v. State of Punjab, AIR 1967 SC 856.
81Ibid.
82Ibid.
83Indra Sarma v VKV Sarma, (2013) 15 SCC 755.
84405 US 38.

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exclusion seems to be that an unmarried women would not have given birth previously. 85
Therefore, this section of the aforementioned act is in violation of right to freedom.

3.4 UNJUST RESTRICTION BASED ON INVOLUNTARY CIRCUMSTANCES

3.4.1 ‘CLOSE RELATIVE’ CLAUSE IS VAGUE IN NATURE

Vague laws offend several important values 86. It is insisted or emphasised that laws should
give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly87.A section which creates an offence and which is vague must
be struck down as being arbitrary88.

3.4.2 SCOPE OF THE LIMITATION

Sec. 4(iii)(b)(II) of the Surrogacy (Regulation) Act, 2016 limits the eligibility criteria for the
women to act as a surrogate mother for a married couple. Article 23(1) of the Universal
Declaration of Human Rights89 states that; “Everyone has the right to work, to free choice of
employment”. Hence, in the instant case, it is violated. Similarly, according to the Art.6-1 of
the International Covenant90; “The States Parties to the present Covenant recognize the right
to work, which includes the right of everyone to the opportunity to gain his living by work
which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”.
Not only does it deny the freedom to be a surrogate to a woman notwithstanding the ‘close
relative’ clause, but also denies the freedom to a couple to choose their preferred surrogate
mother for their child. Hence, it is also in violation of fundamental rights guaranteed to the
citizens under the Constitution. Since, the fundamental right is violated, the objective behind
the formulation of such law or executive order is irrelevant91.

3.5 PUBLIC MORALITY CANNOT OUTWEIGH DEVELOPMENT

“The parents construct a child biologically, while the child

85Statement of Specific Principles for Assisted Reproductive Technologies: Ethical Guidelines for Bio-medical
Research and Human Participants, Indian Council of Medical Research (2006).
86Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
87Ibid.
88Shreya Singhal v. Union Of India, (2015) 5 SCC 1.
89Universal Declaration of Human Rights, 1948
90International Covenant on Economic, Social and Cultural Rights, 1966. SCW(3rd), pp. 43.
91Bennett Coleman & Co. v. Union Of India, AIR 1973 SC 106; Municipal Corpn. Of City of Ahmedabad v.
Jan Mohammed Usmambhai, AIR 1986 SC 1205.

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constructs the parents socially”92

The moral issues associated with surrogacy are readily apparent, yet of an eye-opening
nature, but the moral objections are not sufficient enough to outweigh the practical need of
the hour for surrogacy93. It can be said that surrogacy not at all unethical and exploitative to
rent out a woman's womb for helping an infertile couple as it benefits all parties to the
surrogacy agreement and there is no harm in it 94. Public morality must give recognition to
surrogacy because it creates opportunity for endless barren mothers to get the joy of
motherhood95. Lord Patrick Devlin in his article “Morals and the Criminal Law” wrote that;
“No act of immorality should be made a criminal offence unless it is accompanied by some
other feature such as indecency, corruption or exploitation … It is not the duty of law to
concern itself with immorality as such … it should confine itself to those activities which
offend against public order and decency or expose the ordinary citizen to what is offensive
and injurious.”96In our society, constitutional morality must outweigh the argument of public
morality, even if it be the view of majority 97. So, it is better to give legality to this concept of
surrogate contract because prohibition on vague moral grounds without a proper assessment
of social ends and purposes which surrogacy can serve would be irrational 98 and ultimately
such legality will create opportunity for poor women to earn their livelihood in a better way99.
IV. THE SURROGACY (REGULATION) ACT, 2015 VIOLATES ARTICLE 21 OF THE
CONSTITUTION OF INDIA.
It is humbly submitted before this hon’ble Court that The Surrogacy (Regulation) Act, 2016
violates the fundamental right to life and personal liberty enshrined under Article 21 of the
Constitution. Right to life is one of the basic human rights and not even the State has the
authority to violate that right100. The two rights, i.e., life and liberty, have been given
paramount importance by court101. It was held that these twin attributes enjoy a fundamental
ascendancy over all other attributes of the political and social order102.
92Law Commission of India, Report No. 228, Need for legislation to regulate Assisted Reproductive
Technology Clinics Rights and obligations of a party to a surrogacy, (2009).
93Tirth Bhatt and Garv Malhotra, Legalization of Commercial Surrogacy and The ‘Rent-A-Womb’ Culture: Is
India's Stand Sound Enough?, 2 NSLJ (2013) 54.
94Supra.
95Babu Sarkar, Commercial Surrogacy: Is It Morally and Ethically Acceptable in India?, (2011) PL December
S-11.
96R.M. Dworkin (Ed.), The Philosophy of Law, (Oxford University Press), 68.
97Ibid.
98The Hindu, Kolkata, Monday, 10-8-2009, 13.
99Ibid.
100State of A.P v. Challa Ramakrishna Reddy, AIR 2000 SC 2083.
101Kehar Singh v. Union of India, (1989) 1 SCC 204.
102D.D BASU, Commentary on the Constitution of India, 8th India, 2008.

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4.1 ARTICLE 21 INCLUDES A WIDE ARRAY OF RIGHTS

The word ‘law’ in Article 21 does not mean merely enacted law 103but incorporates principles
of natural justice104 so that a law to deprive a person of his life or personal liberty cannot be
valid unless it incorporates these principles in the procedure laid down by it. 105 In Munnv.
Illinois106, Field J. Spoke of the right to life in the following words: ―The inhibition against
its deprivation extends to all those limbs and faculties by which life is enjoyed. This has been
affirmed by the Apex Court stating that, ―any act which damages or injures or interferes
with the use of any limb or faculty of a person, either permanently or even temporarily, would
be within the inhibition of Article 21107. The Court ruled that the term personal liberty‘ is used
as a compendious term to include within itself all the varieties of rights which go to make up
the ―personal liberties, including one‘s personal comfort108.

4.2 PROCEDURE ESTABLISHED BY LAW ENVISAGED UNDER ARTICLE 21

4.2.1 ‘PROCEDURE ESTABLISHED BY LAW’

The expression, ‘Procedure established by law’, means procedure enacted by a law made by
the State, that is to say, the Union Parliament or the Legislature of the State 109. According to
Gopalan110, courts shall not be competent to question the constitutionality of any penal law
enacted by a competent Legislature on the ground that the restriction imposed thereby is
arbitrary, or unreasonable. Kania, C.J said in this case; “To read the word "law" as meaning
rules of natural justice will land one in difficulties because the rules of natural justice, as
regards procedure, are nowhere defined and the Constitution cannot be read as laying down
a vague standard. In omitting to adopt "due process of law" it was considered that the
expression ‘procedure established by law’ made the standard specific. It cannot be specific
except by reading the expression as meaning procedure prescribed by the legislature”.

But this view has been superseded by subsequent decisions111, and it is now established that in
order to be valid, the procedure prescribed must not be arbitrary, unfair or unreasonable. 112 In

103Narinderjit Singh Sahni & Anr. v. UOI & Ors. AIR 2001 SC 3810, ¶61.
104A.K Gopalan v. State of Madras, AIR 1950 SC 27, ¶13.
105Prof M.P Jain , Indian Constitutional Law, Ch VIII Sec E (d), 7th edition, (2016)
10694 US 113¶141 Pg 94.
107Francis Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746, ¶7.
108Kharak Singh v. State of U.P, AIR 1963 SC 1295, ¶16.
109Collector of Malabar v. Errimal Ebrahim Hajee, AIR 1957 SCC 688.
110Supra
111Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158; Maria Margarida Sequeira Fernandes v.
Erasmo Jack de Sequeira, (2012) 5 SCC 370.
112Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Inderjeet v. State of U.P, (1979) 4 SCC 246.

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Maneka Gandhi’s113case, the court observed that the requirement of compliance with natural
justice was implicit in Article 21. It is difficult to hold that the substance of the doctrine of
‘due process’ has yet not been judicially infused into the conservative text of Article 21.

4.2.2 INCORPORATION OF ‘DUE PROCESS’ INTO NATIONAL JURISPRUDENCE

In Sunil Batrav. Delhi Administration114, it was held, “True our Constitution has no Due
Process Clause or the 8th Amendment of the American Constitution; but in this branch of law
after Cooper115, and Maneka116, the consequence is the same. This decision was followed in
Mithuv. State of Punjab117, while considering the constitutional validity of Section 303 of
Indian Penal Code. Article 21 has emerged as the Indian equivalent of the ‘due process’
clause after the landmark judgment in Maneka118case. In a recent judgment119, it was stated
that Art. 21 of the Constitution lays down that nobody shall be deprived of his life and liberty
except according to the procedure established by law. By judicial interpretation, the Supreme
Court has read the principle of reasonableness into the said procedure contemplated by
Article 21, holding that it must be "right and just and fair" and not arbitrary, fanciful or
oppressive120.

4.2.3 PROCEDURE ESTABLISHED MUST BE ‘JUST, FAIR AND REASONABLE’

Supreme Court held that the "Procedure established by law" cannot be arbitrary but should be
just, fair and reasonable121. Several judgments were delivered on this issue, and the upshot of
all of them is that Article 21 is to be read along with other fundamental rights, and so read not
only has the procedure established by law to be just, fair and reasonable 122. The principles of
natural justice are an integral part of the guarantee of equality assured by Art. 14 123. Any law
made must be fair, just and reasonable. To become fair, just and reasonable, it would not be
enough that the procedure prescribed in law is a formality. It must be pragmatic and realistic
to meet the given fact-situation. No inflexible rule of hearing and due application of mind can
be insisted upon in every or all cases. Each case depends upon its own backdrop 124. The Rule

113Id.
114AIR 1978 SC 1675.
115Cooper v. Union of India, AIR 1970 SC 564.
116Supra,
117(1983) 2 SCC 277.
118Ibid.
119Shabnam v. Union of India, (2015) 6 SCC 702.
120Id.
121Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608.
122Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.
123D.K Yadav v. J.M.A Industries Ltd., (1993) 3 SCC 259.
124 Ahmedabad Municipal Corpn. v. Nawab Khan Gulab Khan, (1997) 11 SCC 121.

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of Law which permeates our Constitution demands that it has to be observed both
substantially and procedurally. Rule of law posits that the power is to be exercised in a
manner which is just, fair and reasonable and not unreasonable, capricious or arbitrary
manner leaving room for discrimination125.

4.3 ARTICLE 21 CONTEMPLATES REPRODUCTIVE AUTONOMY

The right to privacy enshrined under Article 21 of the Constitution recognizes that all
individuals have the right to safeguard the privacy of his or her own, family, marriage,
procreation, motherhood, child bearing and education among many other matters126.The right
to make decisions about reproduction also falls within the ambit of personal liberty 127. Such a
right may not be interfered with under the guise of protecting public interest by legislative
action which is arbitrary128. The American Supreme Court in Skinner v. Oklahoma129,
characterised the right to reproduce as a “one of the basic civil rights of man.” A woman's
right to make reproductive choices is also a dimension of "personal liberty" as understood
under Article 21 of the Constitution, the crucial consideration being that a women's right to
privacy, dignity and bodily integrity should be respected130. This means that there should be
no restriction whatsoever on exercise of reproductive choices. It is important to recognise that
reproductive choices can be exercised to procreate as well as to abstain from procreating 131.
This view was upheld by the hon’ble High Court of Bombay 132. Thus, the State cannot
interfere and force actions in matters relating to reproductive decisions 133. Courts have
discouraged any discrimination against classes of women that curtails their reproductive
autonomy134. Moreover, regulations impinging on this autonomy can only be upheld if they
have no significant impact on the woman's exercise of her right and are justified by
compelling state health objectives135. In the instant case, there are no public health concerns
arising out of gestational surrogacy that affect single and unmarried surrogates more than
they affect married surrogate offering surrogacy services136.

125 DTC v. Mazdoor Congress, AIR 1991 SC 101 ¶ 202.

126Gobind v. State of Madhya Pradesh and Anr., 1975 CriLJ 1111.
127S. Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137.
128Meyer v. Nebraska, (1923) 67 L.Ed 1042.
129316 US 535.
130Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1.
131Meera Santosh Pal and Ors. v. Union of India and Ors., 2017 SCC OnLine SC 39.
132High Court on its motion v. The State of Maharashtra, 2016 SCC OnLineBom 8426.
133B.K. Partsarathi v. Government of A.P and Ors.,1999 (5) ALT 715.
134Inspector (Mahila) Ravina v. Union of India and Ors., W.P.(C) 4525/2014.
135Planned Parenthood of Central Missouri. v. Danforth, 428 U.S. 52 (1976).
136Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health in India: Issues
and Perspective, INDIAN JOURNAL OF PUBLIC HEALTH 2 , 57 (2013).

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4.4 THE RIGHT TO LIVELIHOOD CANNOT BE CIRCUMSCRIBED

“Right to Livelihood137 is an important facet of a right to life.138”

In the landmark case of Olga Tellis & Ors. v. Bombay Municipal Corporation139, the
Supreme Court propounded the scope of Article 21. Supreme Court has held in Olga Tellis140
case, that the right to livelihood is born out of the right to life, as no person can live without
the means of living, that is, the means of livelihood. Emphasizing upon the close relationship
between ‘life’ and ‘livelihood’, the Court stated; “That, which alone makes it possible to live,
leave aside what makes life liveable, must be deemed to be an integral component of the right
to life. Deprive a person of his right to livelihood and you shall have deprived him of his
life”141. Similarly, Supreme Court in another judgment stated that, “There is no doubt that
broadly interpreted and as a necessary logical corollary, right to life would include the right
to livelihood and, therefore, right to work”142. Right to life as a fundamental right stands
enshrined in the constitution. The right to livelihood is born of it 143. Right to life and personal
liberty advanced under Article 21 of the Constitution also provides the citizens with the right
to livelihood. This view was presented by the Supreme Court in the matter of Board of
Trustees of the Port of Bombay v. Dilipkumar R. Nandkarni144. Resonating the
interpretation of Article 21 in the instant matter, it can be clearly inferred that Section 4(iii)(b)
(i) of The Surrogacy (Regulation) Act, 2016 stands contrary to the views presented in the
cases mentioned above as it restricts the right to livelihood of unmarried women to act as
surrogate mothers and hence, it is constitutionally void.

4.5 ARTICLE 21 INCLUDES RIGHT TO LIVELIHOOD

4.5.1 RIGHT TO HEALTH OF THE COMMISSIONING PARENTS IS VIOLATED

Health has been recognized as the state of complete physical, mental and social well-being
andnot merely the absence of disease or infirmity thereby falling under the ambit of right to
life inArticle 21145. Infertility has been defined as “a disease of the reproductive system
defined by thefailure to achieve a clinical pregnancy after 12 months or more of regular

137S. Shangri Khai v. UOI, AIR 2011 Gau 171, ¶14.

138Dayaram Deb Barma v. State of Tripura, 2013 SCCOnline Tri 553.
139AIR 1986 SC 180.
140Id.
141Ibid.
142Delhi Development Horticulture Employees’ Union v. Delhi Administration, AIR 1992 SC 789.
143Madhu Kishwara v. The State of Bihar & Ors., 1996 5 SCC 125, ¶56.
144AIR 1983 SC 109.
145 Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286.

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unprotected sexual intercourse."146The growth in the use of ART methods is due to the
recognition of the fact thatinfertility as a medical condition is a huge impediment in the
overall wellbeing of couples147. TheCourts have held that right to health and medical care is a
fundamental right under Article 21read with Articles 39(c), 41 and 43 of the constitution 148.
This encompasses the professionalresponsibility to provide medical services in keeping with
the technological advancement149.Therefore, by denying single, unmarried women, and
foreigners from availing of surrogacy, theAct violates their right to health under Article 21.

4.5.2 PRINCIPLES OF INTERNATIONAL COVENANTS MUST BE KEPT IN MIND

India’s commitment does not go beyond what is prohibited in the Constitution, though the
spirit of the International Convention has to be kept in view in considering the validity of the
impugned provisions and their applications.150 Under international conventions such as the
United Nations Commission on Human Rights, theright to health includes the right to a
system of health protection which provides equality of opportunity for people to enjoy the
highest attainable level of health as well as the right to sexual and reproductive freedoms 151.
To this end, states recognize the right to benefits of scientific progress and its applications 152.
The prevention and appropriate treatment of infertility has been included in the International
Conference on Population and Development Programme of Action 153 as a component of the
primary health care system154. The Programme of Action further provides the right of access
to appropriate health-care services that will enable women to go safely through pregnancy
and childbirth and provide couples with the best chance of having a healthy infant155. Since
India is signatory to the Programme of Action and a member of the UNCHR, the
aforementioned commitments are binding. Therefore, it is submitted that the Act is in
contravention of India’s obligations under international covenants.

146 Revised Glossary of ART Terminology, International Committee for Monitoring Assisted Reproductive
Technology (ICMART) ; World Health Organization (2009); Section 2(v), Draft Assisted Reproductive
Technology (Regulation) Bill, 2014.
147228th Report , The Law Commission of India (2009).
148C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., AIR 1992 SC 573.
149Paschim BangaKhet Mazdoor Samity v.State of West Bengal, AIR 1996 SC 2426.
150 P.N. Shri Krishna Lal & Ors. v.Govt. of Kerela and Anr, 1995 SCC (Cri) 466.

151 Factsheet No. 31, UN Commission on Human Rights (2003); Committee on Economic Social and Cultural
Rights, General Comment No. 14 (2000); Paragraph 41, UN General Assembly, International Covenant on
Economic, Social and Cultural Rights, 16 December 1966, United Nations Treaty Series, vol. 993, p. 3.
152Article 15(1), International Covenant on Social, Economic and Cultural Rights, 993 UNTS 3 (1996).
153Hereinafter, “the Programme of Action 1993”.
154Programme of Action 1993; CEDAW Committee General Recommendation 19, Violence against Women,
U.N.
Doc. A/37/48.
155Principle 8, Programme of Action.

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 Filed and appearing on behalf of the Petitioner

V. THE ADMINISTRATIVE ACTION TAKEN AGAINST THE PETITIONER VIOLATES THE

PRINCIPLES OF NATURAL JUSTICE.

5.1 THE PETITIONER’S DISMISSAL FROM SERVICE IS IN DEFIANCE OF

PRINCIPLES OF NATURAL JUSTICE.
It is humbly submitted that natural justice simply means ‘the natural sense of what is right
and wrong’ and technically it is equated with ‘fairness’.156 The Supreme Court has
characterized the principles of natural justice as “foundational and fundamental concepts”
which are “part of the legal and judicial proceedings”.157 Thus, in accordance to the principles
of natural justice, a person against whom action is being taken should be notified of the
charges and should be given enough time to offer defense and to refute the prosecution
version. The purpose of this principle is prevention of miscarriage of justice and hence
observance thereof is the pragmatic requirement of fair play in action.158

5.1.1 PRINCIPLE OF AUDI ALTERAM PARTEM SHALL APPLY

The principle of audi alteram partem, which means ‘listen to the other side’ is founded on the
rule that no one should be condemned or deprived of his right even in quasi-judicial
proceedings unless he has been granted liberty of being heard. 159 A quasi-judicial function is
an administrative function which the law requires to be exercised in some respects as if it were
judicial.160 But in the present matter, the petitioner was dismissed from service without being
given the opportunity to present her case and not even any notice was given to her.
Condemning a person without telling him what he is accused of amounts to flagrant violation
of natural justice. Any proceeding against a person without notice to him violates natural
justice.161 In J.P. Shuklav. State of U.P.162, Supreme Court had pronounced that “Reasonable
opportunity must be given to a person to defend himself in departmental inquiry.”In the case
of Sheila Devi v. Executive Engineers,163the court held that a decision made by an authority in

156 WADE & FORSYTH : Administrative Law, 9th Ed., 2005, p. 440
157R L Sharma v. Managing Committee, Dr. Hari Ram H. S. School, AIR 1993 SC 2155
158Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, (2009) 4 SCC 299
159Competition Commission of India.
160 Ibid at 157, p.41.
161Abdul Ghaffar v. State of U.P., AIR 1984 All 283; State of A.P. v. Nagam Chandrashekhara, AIR 1988 SC
1309; Shri Shiv Kumar v. The Managing Director, U.P. Financial Corporation, 2005 (61) ALR 307, Olga Tellis
v. Bombay Municipal Corporation, AIR 1986 SC 180.
162 AIR 2000 SC 2806.
163 AIR 1971 All 343.

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breach of natural justice is void ab initio. While, it was held by Kerala High Court that a
decision rendered contrary to the principles of natural justice was void.164

5.1.2 APPLICABILITY OF THE PRINCIPLES OF ‘ NATURAL JUSTICE’

Since no procedure is prescribed for disciplinary action either in the Industrial Dispute Act,
1947 or in the rules made thereunder, the employer is required to follow the principles of
natural justice and the principles laid down by the Supreme Court and the High Courts. 165
Section 2(s) of The Industrial Disputes Act, 1947 defines “Workman” as- “workman” means
any person (including an apprentice) employed in any industry to do any manual, unskilled,
skilled, technical, operational, clerical or supervisory work for hire reward, whether the terms
of employment be express or implied, and for the purpose of any proceeding under this Act in
relation to an industrial dispute, or whose dismissal, discharge or retrenchment has led to that
dispute. Thus, in the present matter, the petitioner can be classified as a “workman” under The
Industrial Disputes Act, 1947 and shall be governed by the principles of natural justice.

5.2 PETITIONER’S DISMISSAL FROM SERVICE VIOLATES THE PRINCIPLE OF

ARTICLE 21.
It is humbly submitted that presumption of innocence is a human right. Article 21 in view of
its expansive meaning not only protects life and liberty but also envisages a fair procedure. 166
Fair investigation and fair trial are concomitant to preservation of fundamental rights of the
accused under Article 21 of the Constitution167 and that free and fair trial is sine qua non of
Article 21. In the instant matter, the Petitioner was deprived of the right to free and fair trial
as there had been no investigation done by the concerned authority nor was any trial
conducted. The Supreme Court has established that the procedure contemplated by Art. 21 is
that it must be “reasonable, just and fair”168 and not arbitrary, fanciful or oppressive169 .

5.3 THE PETITIONER IS ENTITLED TO MATERNITY BENEFITS

It is humbly submitted that Section 5 of the Maternity Benefits Act, 1961 reads –
“Subject to the provisions of this Act, every woman shall be entitled to, and her employer
shall be liable for, the payment of maternity benefit at the rate of the average daily wage for

164President, Commonwealth Co-op Society v. Joint Registrar, Co-op. Socities, AIR 1971 Ker 34; Durga
Shankar Kar v. State of Orissa and Ors., AIR 1982 Ori 20.
165 Kumar H L and Kumar Gaurav, Practical Guide to Labour Management A to Z from Selection to
Separation, Universal Law Publishing Co. Pvt. Ltd.
166Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, AIR 2005 SC 2277
167Nirmal Singh Khalon v. State of Punjab, AIR 2009 SC 984.
168Supra
169Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

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the period of her actual absence, that is to say, the period immediately preceding the day of
her delivery, the actual day of delivery and period immediately following that.” “‘Woman’
means a woman employed, whether directly or through any agency, for wages in any
establishment.”170 Thus, in the instant matter, the petitioner comes under the ambit of Section
5 and is entitled for benefit. In Municipal Corporation Delhi v. Female Workers,171 it was
held by SC that the grant of maternity benefits was not a grant of charity, but a positive
mandate of law.In K Chandrika v. Indian Red Cross Society and Anr.172, Gita Mittal J. while
deciding on somewhat similar facts observed that since the order of termination does not
disclose any reasons. However, the manner in which her termination has been effected would
go a long way to indicate that the same may have been on account of her pregnancy. Your
lordship therefore observed that the findings of the industrial adjudicator to the effect that her
services were terminated illegally and unjustifiably which have attained finality, are bad in
law. However, in the present matter, the petitioner had applied for availing of maternity
benefits which was rejected with no disclosure of the reasons resulting in the dismissal of the
petitioner and the rejection of her maternity benefits. Furthermore, Article 11(2)(a) of
“Convention on the Elimination of all Forms of Discrimination against Women” 173prohibits,
dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals
on the basis of marital status”.

170 Section 2 (o), Maternity Benefit Act, 1961.

171 AIR 2000 SC 1274; Bharti Gupta v. Rail India Technical and Economical Services Ltd. (Rites) & Ors., 2005
SCC Online Del 844; Tmt. K. Geetha v. The Director of Municipal Corporation, Chepauk, Chennai and Ors.,
2011 SCC Online Mad 2478
172 (131) 2006 DLT 535
173Convention on the Elimination of all Forms of Discrimination against Women, 1979

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PRAYER

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