-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE I OF XV

ISSUES RAISED

I. Whether the (jurisdiction)

II. Whether deficiency of service has occurred?
III. Whether SBI is liable for the negligence done by the Intern as a Principal-Agent
Relationship?
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE II OF XV

SUMMARY OF ARGUMENTS

I. Whether the Writ Petition is maintainable before the Supreme Court?

It is submitted that the Writ Petition is maintainable before the Hon’ble Supreme Court
becauseA.the Supreme Court has the power of judicial review;B. there is a violation of
Fundamental Rights of the Petitionersandthe petition is amenable to the jurisdiction of the
Court under Article 32.

II. Whether Ms. Smita can claim absolute right to termination of pregnancy at 11th
week of pregnancy?
It is submitted before this Hon’ble Court that Ms. Smita can claim absolute right to
termination of pregnancy because A. MTP Actconfers absolute right to termination of
pregnancy to Ms. Smita; B. Ms. Smita’s right to terminate her pregnancy is protected under
Article 21 of the Constitution of Prosperia.

III.Whether the law enforced in Prosperia according to which pregnancy beyond 20th
week can be terminated only if it is necessary to Save the Life of the mother is
constitutionally valid?

It is submitted that the law enforced in X which says that pregnancy beyond 20th week
can be terminated only if it is necessary to Save the Life of the woman is
constitutionally void. The constitutional validity of the impugned provision is
challenged on the grounds that A. It violates Article 14 of the Constitution; B. it
violates Article 21 of the constitution; C. it violates Article 19; D. it violates the
doctrine of Constitutional Morality.

IV. Whether Preeti can claim absolute right to termination of pregnancy at 30th week
of pregnancy like Smita?
It is submitted before this Hon’ble Court that Preeti can claim absolute right to terminate her
pregnancy because A. MTP Actgrants her absolute right to terminate pregnancy; B.
termination of Pregnancy above 20 weeks can be safely provided; C. her right is protected
under Article 21 of the Constitution; D. women’s right take priority over Foetus survival.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE III OF XV

V. Whether the right claimed by the religious group ‘Save the Life’ enjoys protection
under the Constitution of Prosperia and if yes whether it override the reproductive
rights of these women?
The right claimed by the religious group ‘Save the Life’ i.e. abortion is against the religion,
does not enjoy protection under Article 25 of the Constitution of Prosperia as A. abortion is a
secular activity; B. abortion does not constitute the essence of any religion; C. abortion does
not affect the fundamental character of any religion.

VI. Whether a foetus enjoys Right to life under the Constitution of Prosperia?

It is humbly submitted that under the Constitution of Prosperia, the right to life of a foetus is
not recognized. The principle of ‘Right to Life’ is embodied under Article 21 of the
Constitution of Prosperia. Afoetus fails to enjoy this right under the Constitution of Prosperia
because A.foetus cannot be understood to fall within the meaning of ‘person’ as enshrined
under Article 21; B.the Constitution of Prosperia does not recognize pre-natal rights; and
C.afoetus is a potential human life and not existing human life.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 1

ARGUMENTS ADVANCED

I. WHETHER THE WRIT PETITION IS MAINTAINABLE BEFORE THE

SUPREME COURT?

It is submitted that the Writ Petition is maintainable before the Hon’ble Supreme Court
because A. the Supreme Court has the power of judicial review;B. the Petitioners has a locus
standi there is a violation of Fundamental Rights of the Petitionersand C.the petition is
amenable to the jurisdiction of the Court under Article 32.

A. The Supreme Court has the power of Judicial Review under Article 32.

1. The Constitution expressly confers upon the Supreme Court, power of Judicial
Review under Art. 32.1 It has the exclusive power of judicial review to resolve
disputes regarding the limits of constitutional power2 as an ultimate interpreter of the
Constitution.3 Article 32 makes it an obligation of the Supreme Court to protect the
fundamental rights of the people and for that purpose Apex Court has the incidental
and ancillary powers to evolve new remedies and strategies to enforce the
fundamental rights.4

2. Furthermore, the constitutionality of a legislation must be tested on the anvils of the

constitutional norms5 and has to be in conformity with other fundamental rights
guaranteed under Part III of the Indian Constitution6. Art. 13 of the Indian
Constitution7 empowers the court to strike down a law which is inconsistent with the
fundamental rights.8

1
Rameshwar Prasad v. Union of India, 2 S.C.C. 2006; Laxmi Shankar Prasad v. Union of India, 2 SCC 1991
488;S.S. Bola v. B.D. Sardana, 8 SCC 1997 522; Jyotendrasinjhi v. S.I. Tripathi, A.I.R. 1993 S.C. 1991.
2
Gulabbhai Vallabbhai Desai v. Union of India 1SCR 1967 602; Fazru v. State of Haryana, A.I.R. 1998 P.& H.
133; Law Commission of India Report No. 215, L. Chandra Kumar be revisited by Larger Bench of Supreme
Court, (March 13, 2019, 03:43 AM), http://lawcommissionofindia.nic.in/reports/report215.pdf.
3
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1408 (8th ed. 2018); State of West Bengal v. Comm. for Prot. of
Democratic Rts., 3 SCC 2010 571;I.R. Coelho v. State of Tamil Nadu, 2 S.C.C. 2007 1; Nar Singh v. State of
Uttar Pradesh, 1 S.C.R. 1955 238.
4
DR. B. L. WADEHRA, PUBLIC INTEREST LITIGATION, 4th edn. 35 (New Delhi: Universal Law Publishing Co.
Pvt. Ltd., 2014).
5
1 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 689 (8th ed. 2007).
6
Common Cause v. Union of India, 6 S.C.C.1999 667.
7
Laws of Prosperia are in pari materia to laws of India, moot proposition page 2.
8
John Vallamattom v. Union of India, 6 S.C.C. 2003 611; Deep Chand v. State of Uttar Pradesh, A.I.R. 1959
S.C. 648.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 2

B. The Petitioners has alocus standi and there is violation of Fundamental

Rights.

3. It is submitted that the petition is maintainable under Art. 32 9 because the Petitioners
has locus standi andthere is a violation of fundamental rights of women.

The Petitioners has a locus standi.

4. The term ‘locus standi’ connotes the right to bring an action 10 and to be heard.11 Any
member of public or any public-spirited organization 12 having a bona fide13 and
sufficient public interest14 will have locus standi to maintain an action for Writ
Petitionunder Art. 32.

5. In the present case, there are five women Petitioners, 15 all of whom are aggrieved by
the repressive provisions of the Medical Termination of Pregnancy Act (Hereinafter
referred to as MTP Act). One an unmarried woman at the eleventh week of her
pregnancy16; second a woman at 22nd week of her pregnancy where the foetus suffers
from cardiac anomaly of a magnitude that risks the baby’s survival beyond five
months of birth17; third is a rape survivor who came to know of her pregnancy at the
25th week;18 fourth is a victim of domestic abuse who wishes to abort her 21 week old
foetus in the conspectus of an unhealthy marital home; 19 the fifth Petitioners is 30
weeks old pregnant and has taken a conscious decision to abort the pregnancy. 20 All
these women have been refused the termination of their pregnancies on the grounds
that the reasons don’t fall under the narrow provisions of the MTP Act.

6. The Petitioners are aggrieved. There fundamental right to privacy has been
compromised inasmuch as the Petitioners are being denuded of their bodily autonomy
of intimate decision making. Therefore, it is submitted that they have an apposite
9
Indian Consti. Art 32.
10
5 P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 4041 (4thed. 2010).
11
BLACK’S LAW DICTIONARY 1084 (10th ed. 2015).
12
Janta Dal v. H.S. Chowdhary, 4 S.C.C.1992 305; Bandhua Mukti Morcha v. Union of India, 3 SCC 1984 16;
1V.N. SHUKLA, CONSTITUTIONOF INDIA 345 (12th ed. 2016).
13
Fertilizer Corp. Kamgar v. Union of India, A.I.R. 1981 S.C. 844; Foreward Constr. Co. v. Prabhat Mandal,
(1986) 1 S.C.C. 100; Raunaq Int’l Ltd. v. I.V.R. Constr. Ltd., 1 S.C.C. 1999 492.
14
Ashok Kumar Pandey v. State of West Bengal, (2004) 3 S.C.C. 349; Nepal Sarkar v. State of West Bengal,
1993 S.C.C. OnLine Cal. 84; R. Lakshmipati v. S. Ramalingam, SCC 1998 Mad. 427.
15
Moot proposition, pg. no. 2 ¶ 11.
16
Moot proposition, pg. no. 1 ¶ 6.
17
Moot proposition pg. no. 1 ¶ 7.
18
Moot proposition pg. no. 2 ¶ 8.
19
Moot proposition pg. no. 2 ¶ 9.
20
Moot proposition pg. no. 2 ¶ 10.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 3

locus standi to move the Supreme Court under Article 32.

There is a violation of FR’s of women.

7. The writ jurisdiction of Supreme Court can be invoked under Art. 32 for the violation
of fundamental rights guaranteed under Part -III of the Constitution.21

Violation of Article 14 of the Constitution

8. The Petitioners submit that the impugned provision violates the right to equality
before law and equal protection of law guaranteed under Art. 14 and Art. 15 by
unreasonably classifying different women in different duration of their gestation
period. It has placed victims of social and mental abuse on the same pedestal as an
average healthy woman by disregarding the merits involved under different
circumstances.

Violation of Article 21 of the constitution.

9. Secondly, the impugned provision violates the right to life enshrined under Article 21
by denuding the right of the women to exercise bodily autonomy in making a choice
to bear a child or not. In K.S. Puttaswamy 22 court has recognised the constitutional
right of women to make reproductive choices, as a part of personal liberty under
Article 21 of the Indian Constitution. The right of procreation recognized by the
courts23 also entails the discretion to bear a child as part of procreation.
10. The Bombay High Court reaffirmed the fact that the continuing of unwanted
pregnancy would be a violation of woman’s bodily integrity 24 and the same has been
reiterated in a US case.25

11. The provisions of the MTP Act, encroach upon the woman’s right to privacy, dignity
and bodily integrity. Sections 3 and 5 evidently infringe women’s rights to make
reproductive choices.

C. The petition is amenable to the writ jurisdiction of this Court.

12. It is also submitted that the Supreme Court has recognized instances where the private
interest can be transformed into a public interest26 which calls for the action of the

21
Chirajnjit Lal Chowdhury v. Union of India, A.I.R. 1951 S.C. 41; Jharia v. State of Raj., (1983) 4 S.C.C. 7;
Tilokchand Motichand v. H.B. Munshi, 2 S.C.R.1969 824.
22
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., 1 SCC 2018 809.
23
Elkapalli Latchaiah & Anr v. Govt. of A.P. & Ors, AIR 1997 SC 699.
24
High Court on its own motion vs The State of Maharshtra RCR 2016 BOMHC 417.
25
Eisenstadt v Baird, 405 US 438, 653 (1972).
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 4

Supreme Court under Article 32.27 The court held that, “In an appropriate cases,
where the Petitioners might have moved a court in her private interest and for
redressal of the personal grievance, the Court in furtherance of Public Interest may
treat it a necessity to enquire into the state of affairs of the subject of litigation in the
interest of justice. Thus, a private interest case can also be treated as public interest
case”28
13. In conclusion, the Petitioners submits that the Writ Petitionfiled under Art. 32 before
the Hon’ble Supreme Court is maintainable because the Petitioners has the locus
standi and there is a gross violation of fundamental rights of Women.

II. WHETHER Ms. SMITA CAN CLAIM ABSOLUTE RIGHT TO TERMINATION

OF PREGNANCY AT 11TH WEEK OF PREGNANCY?

It is submitted before this Hon’ble Court that Ms. Smita can claim absolute right to
termination of pregnancy because A. MTP Act confers absolute right to termination of
pregnancy to Ms. Smita; B. Ms. Smita’s right to terminate her pregnancy is protected under
Article 21 of the Constitutionof Prosperia.

A. MTP Act, 1971 confers absolute right to termination of pregnancy to Ms. Smita.
14. The relevant provisions of Section 3 of MTP Act is stated as below:
“Section 3 (2) Subject to the provisions of sub- section (4), a pregnancy may be
terminated by a registered medical practitioner-
(a) where the length of the pregnancy does not exceed twelve weeks, if such Medical
Practitioneris, or
(b) where the length of the pregnancy exceeds twelve weeks but does not exceed
twenty weeks, if not less than two registered medical practitioners are, of opinion
formed in good faith, that--
(i) the continuance of the pregnancy would involve a risk to the life of the pregnant
woman or of grave injury to her physical or mental health; or

26
Indian Banks Association Bomaby & ors v M/S Devkala Consultancy Services Ltd, (2004) 11 SCC, 1, AIR
2004 SC.
27
Indian Const. Art. 32.
28
Supra note 26.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 5

(ii) there is a substantial risk that if the child were born, it would be suffer from such
physical or mental abnormalities as to be seriously handicapped.
15. The enactment of the MTP Act has made the provisions of the Penal Code relating to
miscarriage29 subservient to this Act30 because of the non-obstante clause in Section 3,
which permits abortion by a registered practitioner.31
16. Section 3 of the MTP Act prescribes the outer limit of 20 weeks in the matter of
termination of pregnancy.32 The MTP Act permits termination of pregnancy on the
following grounds:
(i) Health- when there is danger to the life or risk to the physical or mental health of
the woman;
(ii) humanitarian - such as, when pregnancy arises from a sex crime like rape or
intercourse with a lunatic woman;
(iii) eugenic - where there is substantial risk that the child, if born, would suffer from
deformities and diseases.33
17. Ordinarily a pregnancy of less than 12 weeks may be terminated by a single Medical
Practitionerupon his satisfaction that the continuation of the pregnancy would involve
a risk to the life of the pregnant woman. 34 A plain reading of the relevant provision 35
in the MTP Act clearly depicts that the consent of the Pregnant Woman is an essential
condition for performing an abortion on that woman if she has attained the age of
majority and does not suffer from any 'mental illness'. 36

18. Pregnancy is a natural phenomenon for which the man and the woman are equally
responsible. However, in cases of accident or unwanted pregnancies the man may not
be there to share the burden but it may only be the woman on whom the burden falls.
19. A woman irrespective of her marital status can be pregnant either by choice or it can
be an unwanted pregnancy.37 There are social, economic and various other aspects
which are attached to the pregnancy of the woman and in case of unwanted

29
Indian Penal Code, 1860 § 312 – 315.
30
MTP Act, 1971.
31
Jacob George vs. State of Kerala AIR 1994 SC 684.
32
Ayesha Khatoon vs. Union of India and Ors. 5 ABR 2018 544.
33
Supra note 31.
34
MTP Act, 1971 § 3(2)(b)(i).
35
MTP Act, 1971 § 3(4).
36
Ibid.
37
High Court on its own motion vs. the State of Maharashtra 2017 ALLMR(Cri) 3250.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 6

pregnancies it can have serious repercussions. Thus, unwanted pregnancies

undoubtedly affect the mental health of the woman.38
20. The MTP Act, 1971 has taken care of helpless plight of a woman through Section
3(2)(b)(i)39 which incorporates "grave injury to the mental health". Therefore, it is
mandatory on the registered Medical Practitionerwhile forming opinion of necessity
of termination of pregnancy to consider whether the continuation of the pregnancy
would be injurious to the physical or mental health of the pregnant woman. While
doing so, the woman's actual or reasonably foreseeable environment has to be taken
into account."40
21. In the present case, Ms. Smita is an unmarried woman and is in a live-in relationship
with her partner, Feroz.41 She is the Head of Sales & Marketing in a leading MNC.
Ms. Smita discovers that she is eleven weeks pregnant and the pregnancy happened
due to the failure of the contraceptive device used.42 As the pregnancy occurred due to
the failure of the contraceptive device used, hence it is an unwanted pregnancy.
22. Ms. Smita is of the view that her pregnancy would become an obstacle in her career 43
as the head of Sales & Marketing in the MNC which would affect her mental health.
It has already been shown above that unwanted pregnancies undoubtedly affect the
mental health of the woman. Therefore, the pregnancy being an obstacle in the career
of Ms. Smita and the pregnancy being unwanted, the continuation of the pregnancy
would involve grave injury to her mental health. As the pregnancy in the present case
is less than 12 weeks, therefore it can be terminated by a single medical practitioner.
23. Moreover, the condition under the MTP Act, 1971 which requires the consent of the
pregnant woman is fulfilled in the present case as Ms. Smita voluntarily and under no
influence of Feroz wants to terminate her pregnancy.
24. It is submitted that the necessary conditions and circumstances as mentioned under
the MTP Act for legal abortion are met in the present case which confers absolute
right to Ms. Smita to terminate her pregnancy.
25. Therefore, in the light of present facts and circumstances, the MTP Act, other
authorities cited and owing to Ms. Smita’s actual and reasonably foreseeable

38
Supra note 32.
39
MTP Act, 1971 § 3(2)(b)(i).
40
MTP Act, 1971 § 3(3).
41
Moot Proposition, pg. no. 1 ¶ 6.
42
Ibid.
43
Supra note 41.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 7

environment, it is submitted that Ms. Smita has absolute right to terminate her
pregnancy according to the MTP Act, 1971.

B. Ms. Smita’s right to terminate pregnancy is protected under Article 21 of the

Constitutionof Prosperia.
26. Article 21 of the Constitutionof Prosperia is stated as below:
“Protection of life and personal liberty - No person shall be deprived of his life or
personal liberty except according to procedure established by law.”44
27. It has been well settled that by the various Supreme Court and High Court decisions
that the reproductive choice of a woman should be respected. 45 It has been made
evident through various decisions that reproductive choices can be exercised to
procreate as well as to abstain from procreating.46
28. The freedom of the pregnant woman to decide whether to continue or to terminate the
pregnancy is an integral part of "personal liberty", and this freedom to continue with
the pregnancy or otherwise cannot be taken away.47
29. The crux of these decisions is that a woman's right to privacy, dignity and bodily
integrity should be respected.48 This takes us to the logical conclusion that there
should be no restriction whatsoever on the exercise of reproductive choices.
30. It is agreed that in the case of pregnant women there is the interest of the State to
protect the life of the prospective child. Therefore, the termination of a pregnancy is
given permission once the conditions specified by the governing law that is the MTP
Act, 1971 have been fulfilled.49 Once these conditions are met and the various
requirements are fulfilled the right of the woman to exercise the reproductive rights
and terminate the pregnancy become absolute.
31. The above facts evince that the continuation of pregnancy would cause a grave injury
to the mental health of Ms. Smita. Therefore, the condition of grave injury to mental
health has been fulfilled as required by Section 3(2)(b)(i) of the MTP Act, 1971.
32. Therefore, in the light of present facts and circumstances and authorities cited and as
the conditions set out in the MTP Act are fulfilled, Ms. Smita has an absolute right to
terminate her pregnancy in eleventh week of pregnancy.
44
Indian Const. Art 21.
45
Supra note 32.
46
Suchita Srivastava and Ors. vs. Chandigarh Administration AIR 2010 SC 235.
47
Supra note 32.
48
Supra note 46.
49
Ibid.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 8

III. WHETHER THE LAW ENFORCED IN X WHICH SAYS THAT PREGNANCY

BEYOND 20th WEEK CAN BE TERMINATED ONLY IF IT IS NECESSARY TO
SAVE THE LIFE OF THE WOMAN CONSTITUTIONALLY VALID?

It is submitted that the law enforced in X which says that pregnancy beyond 20th week
can be terminated only if it is necessary to Save the Life of the woman is
constitutionally void. The constitutional validity of the impugned provision is
challenged on the grounds that A. it violates Article 14 of the Constitution; B. it
violates Article 21 of the constitution; C. it violates Article 19; D. it violates the
doctrine of Constitutional Morality.

A law made by the Parliament can be struck down by courts on two grounds, viz., (1)
lack of legislative competence; and (2) violation of any of the fundamental rights
guaranteed in Part-III of the Constitutionor of any other constitutional provision.50

A. The relevant provision violates article 14 of the constitution

33. Article 14 of the Constitutionof Prosperia states that “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory
of India.”51
34. It is submitted that in order for a legislation to pass the test of article 14, two
conditions must be fulfilled, namely, that the underlying classification 52 must be
founded on an intelligible differentia53 which distinguishes those that are grouped
together from others and that that differentia must have a rational relation to the object
sought to be achieved by the Act.”54
35. Under the classification test, a law falls foul of Article 14 if the object sought to be
achieved by the law doesn’t bear any rational nexus with the intelligible differentia.55
36. It is submitted that the classification made by the Government, in the present case, in
order to distinguish the women pregnant up to the 20th week and those who have
exceeded the 20th week- where the former may abort, the later cannot, does not

50
State of Andhra Pradesh and Ors.v.McDowell& Co., AIR 1996 SC 709.
51
Indian Const. Art. 14.
52
2 ACHARYA DR. DURGA DAS BASU , COMMENTARY ON THE CONSTITUTIONOF INDIA, 1396 (8th Ed., Lexis
Nexis Butterworths Wadhwa Nagpur, 2007).
53
2 RAMANATHAAIYER, ADVANCE LAW MEXICAN, 2391, (3rd Ed., 2005).
54
The State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
55
D.S. Nakara & Others v. Union Of India, 1983 AIR SC 130.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 9

haveany rational nexus with the objective which the government wanted to
achieve.56The Government’s main objective behind the Medical Termination of
Pregnancy Act was to ensure the safety of the woman.57
37. The object of legalizing abortion by passing of the MTP Act was the need to curb
large scale unsafe abortions58 being performed in unhygienic conditions.
The same is reflected in the Parliamentary Debates:
"abortion is not contemplated beyond the said period as no gynaecologist can ensure
the safety."59
38. Thus, if the rationale behind the 20-week bar on abortion was safety of women then
the distinction made certainly had a nexus with the object 38 years ago as medical
science was ill-equipped to address termination of pregnancies beyond the 20th week.
In the modern context, however, the risk to the mother in case of termination of
pregnancy at 25 weeks is not significantly higher than the risk at 20 weeks.60
39. It is submitted that a law which was justified at the time of its enactment may, with
the passage of time, become arbitrary because of a change in
circumstances61and therefore liable to be challenged as being violative of Article 14.62
40. Hence, it is submitted that the Impugned Act is unconstitutional as it manifests
arbitrariness, which is antithetic to equality, and thus violative of Article 14.

B. The impugned provision violates Article 21.

41. Article 21 of the Constitutionreads as:

“Protection of life and personal liberty - No person shall be deprived of his life or
personal liberty except according to procedure establishedby law.”63
42. Termination of pregnancy beyond 20 weeks is allowed where the registered Medical
Practitioneris of the view that termination of such pregnancy is immediately necessary
to Save the Life of the pregnant woman. It is submitted that this provision is arbitrary
and severely restricts the right to life envisaged under Article 21 of the Constitution.

56
Laxmi Khandsari v. State of Uttar Pradesh, 1981 SC 873; Budhan v. State of Bihar, AIR 1970 SC 1453:
(1969) 2 SCC 166.
57
Alice Jacob, Abortion Law Reform: A Study of The Medical Termination of Pregnancy Act, 1971, Indian Law
Institute (Vol.16 1974).
58
Ibid.
59
Medical Termination of Pregnancy Bill, 1969: Parliamentary Debates 1969, p. 2729.
60
Paul A. ISAACSON v. Tom HORNE716 F.3d 1213 (2013).
61
Synthetics and Chemicals Ltd. v. State of UP, AIR 1990 SC 1927.
62
Motor General Traders v. State of AP, AIR 1984 SC 121.
63
Indian Const., art 21.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 10

Article 21 protects reproductive rights.

43. Right of Reproductive choice is at the core of liberty and personal autonomy
recognized by Article 21 of the Constitution. 64It is submitted that although the
Constitutionof Union of Prosperiadoesn’t specifically enumerate the reproductive
rights under Article 21 but the Supreme Court of Union of Prosperia has given wide
interpretation to Right to life65 and has recognized it under article 21. 66It is submitted
that the fundamental concept relating to body integrity, personal autonomy and
sovereignty over her body have to be given requisite respect.67
44. Therefore,Petitioners have the right to abortion as part of their reproductive rights
under article 21 which is being violated by the impugned provision.

Violation of right to live with human dignity

45. It is submitted that the right to life is not merely a physical right but includes within
its ambit the right to live with human dignity. 68The right was also stressed in Francis
Coralie v. Union Territory of Delhi69 and BandhuaMuktiMorcha v. Union of India. 70
The provisions of the MTPA are in conflict with the right to live with human dignity
as it puts a ceiling of 20 weeks for abortion, and after 20 th week pregnancy can be
terminated only if there is a danger to the life of the mother 71; thus affecting the
dignity of the woman. Therefore, the impugned provision is derogatory to the dignity
of the woman and hence should be renounced.

Violation of right to privacy.

46. It is submitted that the right to privacy is broad-based and pervasive under our
Constitutional scheme, and encompasses decisional autonomy, to cover
intimate/personal decisions and preserves the sanctity of the private sphere of an
individual.72 It is further submitted that it is infact the duty of the State to preserve and
protect such right to privacy.

64
Supra note 46.
65
Moot Proposition pg. no. 1¶ 3.
66
Supra note 22.
67
Ms. Z v. The State of Bihar and Others AIR 2017 SC 3908.
68
Maneka Gandhi v. Union of India AIR 1978 SC 597.
69
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.
70
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 112.
71
MTP Act, 1971 § 3(2)(b)(i).
72
Supra note 22.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 11

47. Stressing upon the Right to privacy that must be given to individuals regarding their
most intimate and personal conduct, the Court in the case of Common Cause (A
Registered Society) v. Union of India73observed that,
“It protects the most personal and intimate decisions of individuals that affect their
life and development. Thus, choices and decisions on matters such as procreation,
contraception and marriage have been held to be protected.” “Decisions like those
relating to birth, sex, and marriage, are protected by the Constitutionby virtue of the
right of privacy…”74
48. It is submitted that theHon'ble Supreme Court of the United States in Elsenstadt v. R.
Baird,75 has tersely described the right to privacy in making reproductive choices
as:"If the right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child."
49. The decision whether or not to beget or bear a child is at the very heart of this cluster
of constitutionally protected choices.76The crucial consideration is that a woman's
right to privacy, dignity and bodily integrity should be respected. 77Among various
rights available to a woman, deciding what should be inside her body and what not is
the most fundamental right and the state should not take away this right from her.
Right to abortion comes under the ambit of right to privacy which is recognized under
right to life.78
50. Ergo in the present case, either Tara or any of the Petitioners want to continue their
pregnancy, is their decision and this decision is protected under the ambit of right to
privacy. Hence, it is submitted that it is a woman’s right whether she wants to
procreate or not, whether she wants to be a mother or not, whether she wants to bear a
child or not and even the narrowest interpretation of right to privacy includes right to
abort.79
51. It is submitted that privacy encompasses the right to procreate.80This absolutely makes
it clear that a 20-week restriction and allowing abortion only when it is detrimental to
the health of the woman violates her right to privacy.
73
Common Cause (A Registered Society) v. Union of India CDR 2014 SC 513.
74
Ibid.
75
United States in Elsenstadt v. R. Baird 405 US 438 (1972).
76
Carey v. Population Services International, 431 US 678 (1977).
77
Supra note 22.
78
Roe v Wade, (1973) 410 US 113 (1973).
79
Whole Woman's Health v. Cole, 292 US 662 (2015)
80
Skinner v. Oklahama, 316 US 535 (1942).
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 12

C. Violation of Article 19.

52. The impugned provision of MTP Act is violative of the freedom of speech and
expression protected under Article 19(1) (a). It is further submitted that the freedom
of expression means the right to express one's convictions and opinions freely by
word of mouth, writing, printing pictures or any other mode. 81
ABORTION IS FORM OF EXPRESSION UNDER ARTICLE 19 (1) (a)
53. It is submitted that a woman can express her intention under article 19(1) (a) either by
continuing or terminating her pregnancy but the impugned provision is infringing
right to freedom of expression of the women. 82It is contended that one of the basic
values of a free society to which we are wedded under our Constitution, that there
must be freedom not only for the thought that we cherish, but also for the thought that
we hate.83
54. It is submitted that in the present case it is the right of Meena and other Petitioners to
express their thoughts by way of terminating their pregnancy. Hence, the impugned
provision is violative of article 19(1)(a).

VIOLATION OF THE GOLDEN TRIANGLE

55. It is submitted that there are three Fundamental Rights in the Constitutionwhich are of
prime importance and which breathe vitality in the concept of the rule of law. 84 They
are Articles 14, 19 and 21 which constitutes a golden triangle. All these articles strike
against arbitrariness.Article 19,‘casts its luminous glow’ of reasonableness on Article
14 and 21 and lends meaning to the mutually derived understanding of Articles 14 and
21.85
56. Article 19 strikes against arbitrary legislation in so far as such legislation is violative
of one or the other provision of Clause (1) of that Article. Sub-clauses (a) to (g) of
Clause (1) of Article 19 enact various Fundamental freedoms and in the present case
Sub-clause (1) which guarantees freedom of speech and expression has been violated.

81
Indian Hotel and Restaurants Association (AHAR) and Ors. v. The State of Maharashtra and Ors.CDR 2006
Bom 705.
82
Ms. Asween Kaur, Mother and the Foetus: A Socio-Legal Concept, Bharati Law Review, Jan-Mar 2016.
83
S. Rangarajan and Ors. vs. P. Jagjevan Ram and Ors., 1989 SCR (2) 204.
84
Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors., AIR 1980 SC 1789.
85
ABHINAV CHANDRACHUD, DUE PROCESS OF LAW (1st ed. 2011).
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 13

57. The freedom guaranteed under these various sub-clause (a) of Clause (1) of Article
19 is not absolute freedoms but it can be restricted by law, provided such law satisfies
the requirement of the applicable provision in Clause (2) of that Article. The common
basic requirement of the saving provision enacted in Clauses (2) Article 19 is that the
restriction imposed by the law must be reasonable.
58. If, therefore, any law is enacted by the legislature which violates sub-clause (a) of
Clauses (1) of Article 19, it would not be protected by the saving provision enacted in
Clauses (2) of that Article, if it is arbitrary or irrational, because in that event the
restriction imposed by it would a fortiori be unreasonable.86
59. In the present case, the impugned provision is unreasonable and arbitrary, as it
violates the golden triangle and also, it is not saved under clause 2 of article 19.
Hence, the impugned provision is violative of article 19(1)(a).

D. The provision does not conform with the doctrine of constitutional morality.

60. Constitutional Morality means adherence to the core principles of the constitutional
democracy.  The scope of ‘Constitutional Morality’ is not limited only to following
the constitutional provisions literally but vast enough to ensure the ultimate aim of the
constitution, a socio-juridical scenario providing an opportunity to unfold the full
personhood of every citizen, for whom and by whom the Constitutionexists.87
61. In Government of NCT of Delhi v. Union of India and others88, it was observed: -

"Constitutional morality, appositely understood, means the morality that has

inherent elements in the constitutional norms and the conscience of the Constitution.
Any act to garner justification must possess the potentiality to be in harmony with the
constitutional impulse…”89
62. In Navtej Singh Johar v. Union of India90, the Court held that:

“The concept of constitutional morality is not limited to the mere observance of the
core principles of constitutionalism as the magnitude and sweep of constitutional
morality is not confined to the provisions and literal text which a
Constitutioncontains, rather it embraces within itself virtues of a wide magnitude

86
Bachan Singh Etc.v. State Of Punjab, 4RCR 2008 343.
87
Manoj Narulav. Union Of India, 9SCC 2014 133.
88
Government of NCT of Delhi v. Union of India and others, SCC 2004 375.
89
Ibid.
90
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 14

such as that of ushering a pluralistic and inclusive society, while at the same time
adhering to the other principles of constitutionalism.”91

63. It is submitted before this Hon’ble Court that the principle of constitutional morality
implies adherence to the core values of the Constitutionand dignity, liberty, equality
constitute the trinity92 which defines the faith of the Constitutionbut the impugned
provision is degrading these fundamental principles.
64. It is submitted that it has already been shown above that the impugned provision
violates the right to human dignity, right to privacy, and even denies the Petitioners to
enjoy their reproductive rights which form an essential part of their human dignity. As
in the present case, the dignity and liberty of Tara, Preeti and others are violated.
Hence it should be struck down on the grounds of violating the Principle of
Constitutional Morality.

91
Ibid.
92
Indian Young Lawyers Association and Ors. v. The State of Kerala and Ors., 8SCJ 2018 609.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 15

IV. WHETHER PREETI CAN CLAIM ABSOLUTE RIGHT TO TERMINATION OF

PREGNANCY AT 30TH WEEK OF PREGNANCY LIKE SMITA?

It is submitted before this Hon’ble Court that Preeti can claim absolute right to terminate her
pregnancy because A. MTP Act, 1971 grants her absolute right to terminate pregnancy; B.
Termination of Pregnancy above 20 weeks can be safely provided; C. Her right is protected
under Article 21 of the Constitution; D. Women’s right take priority over Foetus survival.
A. Section 5 of MTP Act, 1971 grants absolute right to termination of pregnancy to
Mrs. Preeti.

65. The relevant provision of Section 5 of the MTP Act, 1971 is stated as below:
“Section 5 – Section 3 and 4 when not to apply
(1) The provisions of section 4, and so much of the provisions of sub- section (2) of
section 3 as relate to the length of the pregnancy and the opinion of not less than two
registered medical practitioners, shall not apply to the termination of a pregnancy
boy a registered Medical Practitionerin a case where he is of opinion, formed in good
faith, that the termination of such pregnancy is immediately necessary to Save the
Life of the pregnant woman.
66. The governing law which is the MTP Act, 1971 authorizes a registered Medical
Practitionerto provide an abortion to a woman whose pregnancy does not exceed 12
weeks93 if the Medical Practitioneris of the opinion formed in good faith that the
continuation of pregnancy would involve a risk to the woman’s life or mental or
physical health94, or if there is a substantial risk that the child would be born with
“physical or mental abnormalities as to be seriously handicapped.”95
67. When the woman’s pregnancy exceeds 12 weeks and is less than 20 weeks 96, at least
two medical practitioners are required to form this opinion. 97When the pregnancy
exceeds 20 weeks98, an abortion can be allowed when the practitioner is of the opinion
that an abortion would be necessary to Save the Life of the pregnant woman.99
68. However, the Supreme Court of Prosperia and various High Courts have given broad
interpretation to Section 5 of the MTP Act, 1971.Various Decisions which have

93
MTP Act, 1971 § 3(2)(a).
94
MTP Act, 1971 § 3(2)(b)(1).
95
MTP Act, 1971 § 3(2)(b)(2).
96
MTP Act, 1971 § 3(2)(b).
97
Ibid.
98
MTP Act, 1971 § 5(1).
99
Ibid.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 16

allowed the termination after 20 weeks have emphasized the impact of the pregnancy
on the woman’s mental health.100
69. Furthermore, the Supreme Court has recognized injury to the mental health of the
woman to be a valid ground to terminate pregnancy at even more advanced stages,
such as at 32 weeks gestation.101
70. The Prosperian Supreme Court decisions recognize that denial of abortions in these
cases lead to violations of the right to life, and have allowed abortions on mental
health grounds even after 20 weeks.102 Hence it can be logically concluded that the
Supreme Court of Prosperia and High Court decisions suggest a broad reading of the
MTP Act to allow abortions beyond 20 weeks on the basis of injury to the mental
health of the woman.103Accordingly Section 5(1) will have to be construed, to meet
the object and purpose of enactment and to promote cause of justice.104
71. On the interpretation of the above cases it can be safely concluded that to terminate
the pregnancy above 20 weeks in cases other than to Save the Life of the woman, two
requirements have to be met. First, that the pregnancy involves a risk to the mental
health of the woman and second, that the termination should be with the free consent
of the pregnant woman.
Absolute Right
72. It is submitted that procreation and the incidental rights are fundamental to the very
existence and survival of the human race.105 Reproductive right of the woman is one
of the basic civil rights.106 The Courts in India have also recognized their right as a
basic human right. Reproductive rights can be exercised to procreate as well as to
refrain from procreating. Hence, the reproductive rights of the woman ought to be
absolute in cases of legitimate and bonafide wish of the woman.107
73. In the present case Mrs. Preeti is a married woman and is 29 weeks pregnant. 108 At the
29th week of pregnancy Mrs. Preeti tells her husband that she does not feel like going
ahead with the pregnancy.109
100
Mamta Verma v. Union of India and Ors., 14SCC 2018 289; Mrs. X and Ors. v. Union of India AIR 2017 SC
878.
101
X v. State of H.P. and Others, AIR 2017 HP 982.
102
Supra note 100.
103
Meera Santosh Pal v. Union of India AIR 2017 SC 787.
104
Supra note 32.
105
Skinner v. Stte of Okl, Ex Rel Williamson 316 US 535 (1941).
106
BK Parthasarthi v. Government of AP, ALD 2000 AP 199.
107
KGP v. PKP AIR 2019 Bom HC 3388.
108
Moot Proposition pg. no. 2 ¶ 10.
109
Ibid.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 17

74. The facts clearly reveal the consent of Mrs. Preeti to terminate her pregnancy. The
consent is not influenced by her husband or any other family members but the
decision to terminate pregnancy has been taken by Mrs. Preeti herself without any
undue influence.
75. It is submitted before this Hon’ble Court that the continuation of pregnancy against
the will and consent of Mrs. Preeti would cause nothing less than grave injury to the
mental health of Mrs. Preeti. The birth of an unwanted child and the maternal
responsibilities (which is reasonably enforceable) which Mrs. Preeti would have to
carry would undoubtedly affect the mental health of Mrs. Preeti.
76. Hence, both conditions required to terminate pregnancy of more than 20 weeks in
cases other than saving the life of the woman have been met. As the conditions set out
in the governing law has been met therefore, Mrs. Preeti has an absolute right to
terminate her pregnancy.

B. Termination of Pregnancy above 20 weeks can be safely provided.

77. It is submitted before this Hon’ble Court that termination of pregnancy has been
recognized as safe at all gestational stages when performed according to established
medical standards.
78. The World Health Organization (WHO) has stated that medical termination of
pregnancy is a “very safe medical procedure” when performed in accordance with
medical standards.110The Royal College of Obstetricians and Gynecologists in the
United Kingdom has stated that, “Abortion is a safe procedure for which major
complications and mortality are rare at all gestations.”111There is a growing body of
clinical research suggesting that terminations after 20 weeks are as safe, and may even
be safer than, delivery at term if performed by a trained provider.112
79. Commenting on the Indian context, Dr. Rishma Dhillon Pai, president of the
Federation of Obstetrics and Gynaecological Societies of India, has noted that
currently in India, “There is greater focus on the time frame than what needs to be
done in the best interest of the mother and the baby. You can’t say that abortion is
safe at 19-and-a-half weeks, but unsafe at 20-and-a-half weeks.”113
110
World Health Organization, Safe Pregnancy: Technical and Policy Guidance for Health Systems 21 (2003).
111
Royal College of Obstetricians and Gynecologists, Best Practice in Comprehensive Postabortion Care (2016).
112
International Women’s Right to Safe Abortion, India – Sexual Abuse ofGirls Followed By Refusal
ofAbortion: Adding Insult to Injury (2017).
113
Sonali Kokra, Huffington Post, Why Is India’s Abortion Law Failing Its Women on So Many Fronts? (2017).
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 18

80. It is submitted that there are well developed procedures as dilatation and evacuation
(D&E) which is successfully being used for later gestational terminations.114
81. Further the cases cited above based on the reports of the Medical Boards which
consist of the best doctors in the country have allowed pregnancy even at the 32nd
week115 of pregnancy in the best interest of the pregnant woman. The successful
termination of these pregnancies conclude that the termination of pregnancy can be
safely provided at 30th week of pregnancies.

C. Ms. Preeti’s right to terminate pregnancy is protected under Article 21 of the

Constitutionof Prosperia.

82. Article 21 of the Constitutionis stated as below:

“Protection of life and personal liberty - No person shall be deprived of his life or
personal liberty except according to procedure established by law.”116
83. It is submitted that the Supreme Court of Union of Prosperia has given wide
interpretation to Right to Life recognised by its Constitutionthough those rights are
not specifically enumerated under Article 21.117
84. In the petitions seeking termination of Pregnancy beyond 20 weeks, the Courts of
Prosperia have repeatedly emphasized the rights of pregnant women as decision
makers over their own bodies and have prioritised them over the foetus. 118 The
Supreme Court of Prosperia in July 2017, granted a petition for an abortion to a
woman whose pregnancy was beyond 20 weeks and stated the following:
“The right of a woman to have reproductive choice is an integral part of her personal
liberty, as envisaged under Article 21 of the Constitution. She has a sacrosanct right
to have her bodily integrity.119
85. The Punjab and Haryana High Court of Prosperia in its decision has held that denying
termination of pregnancy to a woman would violate her right to freedom from
inhuman and degrading treatment.120Various cases where pregnancy is beyond 20
weeks have also put into light that forcing a woman or girl to continue a pregnancy
against her will and consent would violate her fundamental right to bodily integrity,

114
Suchitra Dalvie, Right to Safe Abortion, 52 Economic & Political Weekly 32 (2017).
115
Murgan nayakkar v. UOI and Ors. AIR 2017 SC 282.
116
Indian Const. Art 21.
117
Ibid.
118
High Court on its Own Motion v. State of Maharashtra, Suo Moto P.I.L. No. 1 of 2016, 19 Sept. 2016.
119
Sarmishtha Chakrabortty v. Union of India, AIR 2017 SC 812.
120
R v. State of Haryana, AIR 2017 P&H HC 899.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 19

privacy, and dignity, as well other basic rights, such as the right to work and the right
to receive an education.121
86. These post-20-week decisions that recognize fundamental rights violations echo a
growing body of judgments on issues ranging from maternal health, coerced and
unsafe sterilization, child marriage and marital rape, and MTP that interpret Article 21
to include women’s and girls’ rights to survive pregnancy and childbirth and decision-
making over their own bodies.122 Court decisions recognize that denial of abortions in
these cases lead to violations of the right to life, and have allowed abortions on mental
health grounds after 20 weeks.123
87. It is agreed that in the case of pregnant women there is the interest of the State to
protect the life of the prospective child. Therefore, the termination of a pregnancy is
given permission once the conditions specified by the governing law that is the MTP
Act, 1971 have been fulfilled. This makes it clear that the conditions and the
circumstances laid down in the MTP Act, 1971 act as reasonable restrictions to
exercise the reproductive choice. Once these conditions are met and the conditions are
fulfilled the right of the woman to exercise the reproductive rights and terminate the
pregnancy become absolute.
88. It has already been stated above that Ms. Preeti has to meet with two conditions to
claim absolute right to terminate pregnancy. As it has already been shown that Ms.
Preeti under no influence and with her free consent wants to terminate her pregnancy
and if the pregnancy is continued against her will it would cause grave injury to her
mental health, therefore, the conditions are met and Mrs. Preeti’s right under Article
21 is absolute.

D. Women’s Right take priority over foetal survival.

89. It is submitted that in January, 2017 the Supreme Court of Prosperia held in a post-20
week case that women’s and girls’ rights must be the focus of decisions on MTP. The
Supreme Court of Prosperia stated, “This Court, as at present being advised, would
not enter into the medico-legal aspect of the identity of the foetus but consider it
appropriate to decide the matter from the standpoint of the right of the Petitioners to
121
Mrs. X and Ors. v. Union of India, 2017 SCC 992.
122
Independent Thought v. Union of India, W.P.(C) 382 of 2013, S.C.C. 11 Oct. 2017; Consolidated Decision,
Laxmi Mandal v. Deen Dayal Harinagar Hospital & Others, W.P. (C) No. 8853 of 2008; Hallo Bi v. State of
Madhya Pradesh, W.P.(C) 408 of 2013, H.C. M. & P. 16 Jan. 2013; Devika Biswas v. Union of India, W.P. (C)
95 of 2012, S.C.C..
123
Supra note 101.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 20

preserve her life in view of the foreseeable danger to it, in case she allows the current
pregnancy to run its full course.”124
90. The above ruling echoes the principles articulated by the Bombay High Court which
states that “According to international human rights law, a person is vested with
human rights only at birth; an unborn foetus is not an entity with human rights.”125
91. Furthermore, it has been widely accepted that the women’s right to health is
preponderous to any protection of the fetus vested in the state. The European
Convention of Human Rights has declared in one of the cases that a woman’s health
interest prevails over a state’s declared moral interest in protecting the rights of the
foetus.126

V. WHETHER THE RIGHT CLAIMED BY THE RELIGIOUS GROUP ‘SAVE THE

LIFE’ ENJOYS PROTECTION UNDER THE CONSTITUTIONOF X AND IF YES
WHETHER IT OVERRIDES THE REPRODUCTIVE RIGHTS OF THESE
WOMEN?

The right claimed by the religious group ‘Save the Life’ i.e. abortion is against the religion,
does not enjoy protection under Article 25 of the Constitutionof Prosperia as A. Abortion is a
secular activity; B. Abortion does not constitute the essence of any religion; C. Courts decide
the essential religious practices; D. Essential beliefs are linked with the fundamentals of the
religion.

A. Abortion is a secular activity

92. It is submitted that Article 25 merely protects those practices or beliefs which are an
integral and essential part of the religion. 127It is submitted that in the present case,
prohibition on abortion does not constitute an essential religious practice of any
religion be it Hinduism, Islam or Christianity. Hence it is a secular activity and such
activities are not protected under the shield of Article 25.128
93. Moreover, it is submitted that clause (2)(a) of Article 25 reserves the right of the State
to regulate or restrict any economic, financial, political and other secular activities

124
Meera Santosh Pal v. Union of India 5 SCC 2017 76.
125
High Court on its Own Motion v. State of Maharashtra, AIR 2016 SC 952.
126
Open Door and Dublin Well Woman vs Ireland ECHR 246A (1992).
127
John Vallamatom and another v. Union of India, 6 SCC 2003 611.
128
Dr. NoorjehanSafiaNiaz and anr. v. State of Maharashtra & Ors., SCC 2016 BomHC 5394.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 21

which may be associated with religious practice129 and there is a further right given to
the State by sub-clause (b) under which the State can legislate for social welfare and
reform even though by so doing it might interfere with religious practices. Therefore,
it is submitted that in arguendo, the state has the legitimate power to restrict the right
claimed by “Save the Life” to promote social welfare. Hence, all secular activities,
which may be associated with religion but do not really constitute an essential part of
it, are amenable to State regulation."130
B. Abortion does not constitute the essence of any religion

94. It is submitted that it is only the essential part of religion, as distinguished from
secular activities, which is the subject matter of the fundamental
right.131Constitutiongrants protection to only the ‘essential part’ of religion therefore it
is submitted that before anyreligious practice is examined on the touchstone of
constitutional principles, it has to be ascertained positively whether the said practice
is, in pith and substance, really the ‘essence of the said religion.’132
95. If the taking away of that part or practice could result in a fundamental change in the
character of that religion or in its belief, then such part could be treated as essential or
integral part. Those parts or practices of a religion which can be altered or changed are
certainly not the “core” of the religion. It could only be treated as embellishments to
the non-essential part.133
96. On the same ground, in the present case, even if abortion is practiced; the fundamental
character of all religions remains intact. Hence,abortion is not the essence of any
religion.
97. Furthermore, certain activities may be mentioned in the religious scriptures but may
not be the essential practice of that religion as even if such practice is not followed
then the fundamental character of the religion remains the same.134
98. On the same grounds, in the present case though prohibition of abortion finds its
mention in the religious texts but it is an extraneous and non-essential accretion
because even if it is not followed then the fundamental character of the religion
remains the same. Hence, if prohibition on abortion doesn’tconstitute an essential and
129
Dilawar Singh vs. State of Haryana, AIR 2016 P&H 149.
130
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
131
Subhas Bhattacharjee v.The State of Tripura and Ors., AIR 2019 SC 221.
132
The Commissioner Hindu Religious Endowments, Madras v. Shri LakshmindraThrithaSwaminar of Shri
Shirur Mutt, SCR 1954 1005.
133
Acharya JagdishwaranandAvadhuta and Ors. v. Commissioner of Police, Calcutta and Anr.,AIR 1984 SC 51.
134
Durgah Committee, Ajmer and others v. Syed Hussain Ali and others,AIR 1961 SC 1402.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 22

integral part of the religion then the right claimed by the NGO ‘Save the Life’ is not
protected under the Constitution.

It is submitted that even if one presumes that the right claimed by the religious group “Save
the Life” is protected under the Constitutionit will not override the reproductive rights of the
Petitioners because C.Article 25 is subject to Part III of the Constitution; D. Constitutional
Morality supplants religious beliefs; E.. Religious Beliefs must be in consonance with the
ideals of the Constitution.

C. Article 25 is subject to Part III of the Constitution

99. It is submitted that the expression “subject to” is in the nature of a condition or
proviso. Making a provision subject to another may indicate that the former is
controlled by or is subordinate to other. 135 In making clause 1 of Article 25 subject to
the other provisions of Part III, evidently makes the individual right under article 25
(1) subject to not only public order, health, morality but also to other freedoms that
are guaranteed by Part III.136
100. Once individual dignity assumes the character of a shining star in the
constellation of fundamental rights the place of religion in public places must be
conditioned by India’s unwavering commitment to a constitutional order based on
human dignity.137
101. Therefore, in the present case, prohibition on abortion claimed by the NGO is
against the individual dignity and interferes with the Petitioners’ right to abort. Hence,
practices which are destructive to dignity and liberty are simply not countenanced.

135
Jamshed NoshirSukhadwalla and Ors. v. Union of India and Ors., AIR 2018 MAH 422.
136
Indian Young Lawyers Association v. State of Kerala and Ors,8SCJ 2018 609.
137
Ibid.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 23

D. Constitutional morality supplants religious beliefs.

102. It is submitted that any religious belief or practice must pass constitutional
muster in order to be afforded constitutional protection. 138The constitutional
legitimacy must supersede all religious beliefs or practices.139
103. It is contended that one of the postulates of constitutional morality is
individual liberty140 and freedom of religion is subject to and must yield to the
fundamental postulates of constitutional morality.141Therefore, it is submitted that in
the present case, reproductive rights guaranteeing individual liberty must be at a
higher pedestal than the religious beliefs. Hence, it is submitted that religious beliefs
are subservient to constitutional morality.
104. It is contended that the liberal concept of autonomy focuses on choice and
likewise, self-determination is understood as exercised through the process of
choosing.142 Individual autonomy or self-determination is certainly at the core of the
freedom and specifically bodily autonomy. These values dictate that every individual
be granted complete and exclusive power over the choices concerning his or her
body143. Therefore, in the present case, Tara, Supriya and other Petitioners have the
right to abort their foetuses under Article 21. Hence, it is submitted that reproductive
rights of a woman forms part of her individual autonomy and are protected under
personal liberty component of Article 21.144
105. In the interplay between religion and morality, it is the overarching sense of
constitutional morality which has to prevail. While the Constitutionprotects religious
beliefs, faiths, its purpose is to ensure a wider acceptance of human dignity and liberty
145
as the ultimate founding faith of the fundamental text of our governance. Therefore,
in the present case, as there is a conflict between the right claimed by the NGO ‘Save
the Life’146 and reproductive rights of the women then the one guaranteeing human
dignity, liberty and equality must prevail.Hence, the reproductive rights of the
Petitioners must supersede the rights claimed by the NGO.

138
Adi SaivaSivachariyargal Nala Sangam v. Government of Tamil Nadu (“Adi Saiva”), 2016 2 SCC 725.
139
Govind Lalji v. State of Rajasthan AIR 1963 SC 1638.
140
Navtej Singh Johar and Ors. v. Union of India and Ors.,AIR 2018 SC 4321.
141
Supra note 137.
142
RAWLS, JOHN, POLITICAL LIBERALISM, 32, 33 (Columbia University Press 1993).
143
Rodriguez v. British Columbia (Attorney General) 1993 SCC 75.
144
Supra note 46.
145
Supra note 137.
146
Moot Proposition, pg. no. 2 ¶12, Factsheet.
-II SAARC LAW-JLU MOOT COURT COMPETITION, 2020- PAGE 24

E. Religious beliefs must be in consonance with the ideals of the Constitution.

106. It is submitted that though the Constitutionis solicitous in its protection of

religious freedom, it must be understood that dignity, liberty, equality constitute the
trinity147 which defines the faith of the Constitution. Those religious practices or
beliefs which detract from these foundational values cannot claim legitimacy.148
107. Therefore, in the present case, the right claimed by the NGO in the present
case cannot get protection under the Constitutionbecause it is violative of the liberty
of Tara, Meena and other Petitioners.Ergo, it is submitted that the individual right to
the freedom of religion under article 25 must rest in mutual co-existence with other
freedoms which guarantee above all, the dignity and autonomy of individual.

VI. DOES FOETUS ENJOY THE RIGHT TO LIFE?

It is humbly submitted that under the Constitutionof Prosperia, the right to life of a foetus is
not recognized. The principle of ‘Right to Life’ is embodied under Article 21 149 of the
Constitutionof Prosperia. A foetus fails to enjoy this right under the Constitutionof Prosperia
because A.foetus cannot be understood to fall within the meaning of ‘person’ as enshrined
under Article 21; B.the Constitution of Prosperia does not recognize pre-natal rights; and
C.afoetus is a potential human life and not existing human life.

A. Foetus is not a ‘person’ within the meaning of article 21 of the prosperian

constitution.

108. It is submitted that the right to life as enshrined under the constitution 150 is
granted to persons.151 This personhood is understood in terms of legal personhood i.e.
a person who can be subjected to duties and attributed with rights. 152 The definition of
legal personhood demands to identify the capabilities of a creature, and not solely its
genetic makeup.153 When we look at the fringes of humanity—such as the foetal stage
— we see how the definition of legal personhood cannot be mapped directly onto the
category of humanity154.

147
Pradeep Kumar Singh v.State of Haryana, 2007 CivilCC P&H 1002.
148
Supra note 136.
149
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1408 (8th ed. 2018).
150
Indian Const. Art. 21.
151
Ibid.
152
Bryant Smith, Legal Personality, 37 YALE L. J. 283, 283 (1928).
153
Alexis Dyschkant, Legal Personhood: Where are we getting it wrong?, ILR 344 (2015).
154
Ibid.
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109. Therefore, it is submitted that a legal person is one that is capable of

exercising rights or owing duties, and “any being that is so capable is a person,
whether a human being or not, and no being that is not so capable is a person, even
though he be a man.”155 It is not that being a human being is necessary for being a
person, but that the average adult human is presumed to have the capacity to exercise
rights and owe duties.156 A foetus can only exercise its rights through the mother in
whose womb it resides. Moreover, it cannot be plausibly argued that this exercise of
rights through the agent can be even attributed to an entity whose certainty of
blossoming into a life itself is not yet conclusive at the stage. Thus, associating such
an entity with rights at a stage where its human existence is uncertain is an untenable
argument.
110. Arguendo, Article 21 provides protection for a life 157 that already exists. All
other rights add quality to the life in question and depend on the pre-existence of life
itself for their operation. The Supreme Court through its various judgments 158 has
subtly but very determinedly delivered its decision on the presumption that the
certainty of life cannot be conclusively ascertained unless the baby is born. 159
Therefore, it is submitted that a foetus fails to qualify as a ‘person’ under the said
Article and does not enjoy a right to life.

B. The Constitutionof Prosperia does not recognize pre-natal rights.

111. It is submitted that the Constitutionof Prosperia has nowhere defined in its
application the meaning of ‘person’. However, the courts have interpreted the rights
under the Constitutionare attributable to such entity that at best can be recognized as a
legal person. In the realm of constitutional rights, the understanding of the subjects in
whom these rights are vested is very nuanced inasmuch as there’s a distinction
between citizens, juristic persons and natural persons.
112. In a landmark case160, the US Supreme Court based the decision on the
inference that the rights and interests protected by the Due Process Clause and the
155
Salmond on Jurisprudence, Twelfth edition, 1966, p 299.
156
Bryant Smith, Legal Personality, 37 YALE L. J. 283, 283 (1928).
157
Indian Consti., Art 21.
158
Tapasya Umesh Pisal v Union of India, 2018 12 SCC 57; Suchita Srivastava & Anr. vs. Chandigarh
Administration, 2009 9 SCC 1; Sheetal Shankar Salvi & Anr. vs. Union of India & Ors, (2018) 11 SCC 606;
Meera Santosh Pal & Ors. vs. Union of India , 2017 SCC 39.
159
Mrs A. v Union of India, 2018 SCC 1642.
160
Roe v Wade, 410 US 113 (1973).
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Equal Protection Clause just do not have practical application to a foetus. In

conjunction with the fact that “person” is not constitutionally defined, the Court
refused to attribute legal personhood to foetuses. Important to the Court’s analysis is
the fact that, as a practical matter, the use of the word “person” only has postnatal
application with no indication of any possible prenatal application.161

113. Even if one accepts that human life begins before birth, this does not
automatically and unconditionally confer on this form of human life a right equivalent
to the corresponding right of a child after its birth. 162 From the conspectus of the
Prosperian Constitution, rights such as equality before the law, freedom to religion,
occupation etccannot seem to have a pre-natal application. The makers of
Constitutionhave delegated this right through an agent i.e. the mother in case of the
foetus by presupposing the existence of life.
114. Moreover, under General Clauses Act 1897, the word person has been
defined163 in the same way as under section 11 of Indian Penal Code 1860 164. In
neither of these legislations, the foetus is considered as a person. The word 'person'
under Article 21 of the Constitutionhas the same meaning as under Indian Penal Code
and General Clauses Act. That means foetus is not included under Article-21 so the
right to life is not made available to the foetus under the Constitution.165

C. A Foetus is a not an existing human being.

115. The term ‘human being’ is commonly applied to a member of the human
community, which a zygote or a foetus is not. 166 A human being or a person is
someone far more than the zygote. Fusion of the two gametes does not produce a new
person but only an organism that will only in due course, all being well, become a
person. The tiny cell cluster cannot be possibly considered a person to warrant this
right.167

161
Ibid.
162
Vo v. France, ECHR 326 (2004).
163
General Clauses Act 1967, § 3 (42).
164
Indian Penal Code, 1860 § 11.
165
Emandi Ranga Rao, Right to life of Foetus – Verification of laws in the context of female Foeticide, IJL 33 –
39 (2017).
166
Glanville Williams, The foetus and the Right to Life, Vol 53 No 1, Cambridge Law Journal, pp 71-80 (1994).
167
Ibid.
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116. Moreover, there is a glaring ambiguity in the recognition of foetus as a person

globally. Most of the advanced jurisdictions have shied from granting foetus the status
of a person to assert a right to life on it. The assertion that a foetus was a person runs
counter to the case-law of the legislation of the member States of the Council of
Europe, international standards and the case-law of courts throughout the world. In
Boso v. Italy,168 the European Court on Human Rights held that, “granting a foetus the
same rights as a person would place unreasonable limitations on the Article 2 rights
of persons already born.”
117. Therefore, it is submitted that a foetus in absence of an existing ‘human life’
cannot be accorded the status of a person to enjoy the right to life. Hence, we
conclude that the foetus under the Prosperian Constitutiondoes not enjoy the right to
life.

168
X v. the United Kingdom, ECHR (1978).
II SAARC LAW-JLU MOOT COURT COMPETITION PAGE XV OF XV

PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED,

REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

I. HOLDthat the Writ Petitionis maintainable.

II. DECLARE that Ms. Smita and Mrs. Preeti have absolute right to terminate
pregnancy.
III. HOLD that the law which says that the pregnancy beyond 20 th week can be
terminated only if it is necessary to Save the Life of the woman is
unconstitutional.
IV. DECLARE that the right claimed by ‘Save the Life’ does not enjoy protection
under the Constitutionand it does not override the reproductive rights of the
Petitioners.
V. DECLARE that the foetus does not enjoy the Right to Life

AND ANY OTHER RELIEF THAT THE COURT MAY BE PLEASED TO GRANT IN
THE INTERSTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS
RESPECTFULLY SUBMITTED.

COUNSELS FOR THE PETITIONERS