it is a moot preposition from the respondents side, Papers of Law

Download it is a moot preposition from the respondents side and more Papers Law in PDF only on Docsity! TEAM CODE : C 9TH ALL INDIA SHIVAJI UNIVERSITY MOOT COURT, ADR COMPETITIONS AND VIDHI MELA 2024 ON BEHALF OF RESPONDENT BEFORE THE HON’BLE SUPREME COURT OF SINDHIA IN THE MATTER OF X. ...................APPELLANT Vs. THE PRINCIPAL SECRETARY, HEALTH AND .................RESPONDENT FAMILY WELFARE DEPARTMENT, GOVERNMENT OF ANAND STATE AND ANOTHER . SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION PETITION OF BEHALF OF RESPONDENT COUNSEL APPEARING ON BEHALF OF APPELLANT 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 1 TABLE OF CONTENT SR. NO. NAME OF CONTENT PAGE NO. 1 List of Abbreviations 03 2 Index of Authorities 04 3 Cases Referred 05 4 Statement Of Jurisdiction 06 5 Statements Of Facts 07 6 Statement Of Issue 08 7 Summary of arguments 09-10 8 Argument Advanced 11 - 26 9 Prayer 27 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 4 5. Olga Tellis v Bombay Municipal Corporation 6. Cry for life society v Union of India 7. Depika Jagatram Sahni v Union of India 8. Gian Kaur v State of Punjab 9. P. Rathiram Case 10. Chandigarh Administration 2009 11. Madras v V. G. Row 12. Aruna Ramchandra Shanbugh v Union of India 13. State of Gujarat v Mirzapur Moti Kureshi Kassab 14. Parmanand Katara v Union of India 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 5 STATEMENT OF JURISDICTION ● The Appellant has approached this Hon’ble Court under Article 1361 of the Constitution. ● Leave has been accordingly granted. 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. 1 Article 136 of Constitution of India,1950 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 6 STATEMENT OF FACTS 1. The Appellant 'X' (name is not disclosed due to her privacy restriction), is the resident of Sindhia, is a consenting adult female who is unmarried and is 27 years of age. 2. The Appellant was in a consensual relationship with her partner. After a while, the Appellant was deserted by her partner. Following her desertion, the Appellant discovered she was 22 weeks pregnant. 3. The Appellant became mentally disturbed after discovering her pregnancy. Due to her financial situation and social stigma the Appellant wanted to terminate her pregnancy. 4. For this matter the appellant approached the court and filed a writ petition in the State of Anand High Court to permit her to terminate her pregnancy. The High Court of Anand state did not provide any reliefs to the Appellant. 5. The High Court denied the Appellant's request on the basis of Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which allows married women to have an abortion after 20 weeks. 6. Aggrieved with the Judgment given by the High Court of Anand State the appellant then filed a special leave petition in the Supreme Court of Sindhia. 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 9 ISSUE NO. II ; Whether the rule is violative of Article 14 of the Constitution of Sindhia? A. There is no violation of Art.14 B. Reasonable classification is permitted C. State is empowered to make laws for women D. Interest of Society E. State as a parental authority F. Objectives of MTA Act 1971 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 10 ARGUMENTS ADVANCED ISSUE RAISED NO I: Validity of the exclusion of unmarried and single women under Rule 3B of the MTP Rules, 2003. "The right to life is the first among human rights"2 The right to life is the belief that a human or other animal has the right to live and, in particular, should not be killed by another entity. A. Fundamental rights are not absolute: As rightly said by Wills, “If people were given complete and absolute liberty without any social control the result would be ruined.”3 As said by Jeremy Bentham, object of law is, "To achieve greatest happiness of the greatest number of People”.4 1. Present Law not only represents intent of state legislators but also will of the majority of people who are living in the State. As even said by Dr. Ambedkar who was the chairman of drafting committee that," fundamental rights could not mean absolute rights. State can directly impose limitations upon the fundamental rights." 2. Fundamental rights are not absolute rights and limits can be imposed on them through valid law. They have reasonable restriction which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries. 3. State of W.B. v Subodh Gopal Bose5 the court has held that, “None of the fundamental rights is absolute or uncontrolled; for each is liable to be curtailed by laws made or to be made by the state to the extent mentioned in clauses (2) to (6) of Art. 19. 2 Pope Francis 3 Wills- Constitutional Law and the United States,477. 4 Jeremy Bentham object of law 5 1954 AIR 92, 1954 SCR 587. 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 11 4. While rights are essential for protecting individual freedoms, they can be limited to ensure the well-being of society or to protect the rights of others. 5. In M.B. Cotton Assn. Ltd v Union of India6, the Apex Court has held that the word “restriction” also includes cases of “total prohibition”. 6. In the famous case, Ajay Canu V. Union of India7 this Hon’ble court has observed that, “We do not think that there is any fundamental right against any act aimed at doing some public good.” 7. The right to abortion for unmarried women is crucial aspect of reproductive rights, ensuring autonomy over one's body & decisions. B. Right to privacy is not an absolute right. 8. As per the Art. 21 of the Constitution of India, "No person shall deprived of his life or his personal liberty except according to procedure established by law." 9. Observations of the Hon’ble Supreme Court regarding privacy and liberty cannot be treated as conferring a fundamental right of being recognized in a marriage under Indian personal laws whether codified or otherwise. Even if such right is claimed under Article 21, such right can be curtailed by competent legislature on permissible constitutional grounds including legitimate state interest. Right to privacy is no absolute right it can be restricted only on the due procedure established by law. 10. In the case Mr. X v Hospital Z8 In this, the SC held that - Although the right to privacy is the fundamental right under Art.21 of the constitution yet it is not an absolute right and restrictions can be imposed on it for the protection of crime, disorder or protection of health or morals or protection of rights and freedoms of others. C. The Right to bodily autonomy is not absolute. 6 AIR 1954 SC 634. 7 1988 AIR 2027, 1988 SCR Supl. (2) 632). 8 AIR 1999 SC 495 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 14 23. Following these articles the state has initiated various schemes to protect the interest of children. SCHEMES:- a) Integrated Child Development Scheme (ICDS) - Object :- (1) to improve the nutritional and health status of pre-school children in the age group of 0 to 6 years. (2) to lay the foundation of proper psychological development of child. (3) to enhance the capability of the mother to look after the normal health and nutritional needs of the child to proper nutrition and health education. b) Harihar Scheme:- Object:- (1) To provide free school And higher education including technical education rehabilitation and financial assistance up to the age of 25 years. (2) To provide jobs and compassionate grounds and economically weaker section status. F. Doctrine of Seperation of Powers: Doctrine of Separation of powers as basic Structure of our Constitution. 24. The concept of this doctrine is to remove the abuse of power by the authorities. This doctrine says that no organ of the government can exercise the power other than what is given to them. 25. Montesquieu finds that tyranny pervades when there is no separation of powers. “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 15 that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” 26. Wade and Phillips provide three definitions of the separation of powers: That one branch of government should not carry out the duties of another, and functioning must be independent. 27. As observed by Justice Gupta the Constitution does not permit the courts to direct, advice or sermonize other organs of the State in the spheres reserved for them, provided the legislature or executive does not transgress its constitutional limits or statutory conditions. 28. Even Attorney General KK Venugopal said, ‘even Jawaharlal Nehru's fear of the Supreme Court becoming the third chamber of Parliament was coming true.’ 29. Codification of the Law, amendment of the law and removal of the law comes under the exclusive domain of legislation. G. Reasonable restrictions under Art. 19(2) 30. Under Art. 19(2), the state is not prevented from making law imposing reasonable restrictions so far as such laws are made in the exercise of interest of the society. 31. In the case CRY FOR LIFE SOCIETY V UNION OF INDIA11 -As per this, when a spermatozoon enters the ovum, fertilization takes place which marks the beginning of biological life of an individual. Formation of a child has to be considered from this Stage where after it obtains all rights of the human being and is entitled to protection afforded to every citizen of India, including right to life. 32. It is also contended that abortion is a deliberate ending of life. Every fertilized embryo has got a right of life and it should be protected as that of its mother. The grounds also raised are - an unborn child should be regarded as one of the weakest, the most vulnerable and most defenseless forms of humanity. 11 WP(C). No. 10130 of 2013(S) 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 16 33. Generally the restrictions under Art.19(2) can be imposed by considering the following grounds. i. To prevent the public order. - Public order is synonymous with public peace, safety & tranquility. Public order also includes public safety which means the safety of all members of community. The protection of unborn child also comes under the purview of public order. ii. In the interest of decency or morality of society. - Legality and morality both are interconnected terms. The legislature is free to recognize the degree of harm and may confine its restriction to those cases where need is deemed to be clearest.12 34. "Morality" refers to a code of conduct that would be accepted by anyone who meets certain intellectual and volitional conditions, almost always including the condition of being rational. It is a principle concerning the distinction between right and wrong or good and bad behavior.13 H. State provides protection to dignity 35. A single parent is a person who has a child or children but does not have a spouse or live-in partner to assist in the upbringing or support of the child. 36. In today's evolving society , women have become stronger, rising above societal judgment and stigma to achieve greater heights. Single motherhood arises under various circumstances, such as desertion, divorce, childbirth out of wedlock, adoption by an unmarried woman, surrogacy, or IVF, where the mother assumes both parental roles. 37. The state has protected the rights of the single mother and the rights are recognized by the law. 12 Special Courts Bills, Re, 1978 13 https://dictionary.cambridge.org/dictionary/english/dictionary 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 19 Constitution does not include "Right to Die" or "right to be killed". "The right to die is inherently inconsistent with the "right to life" as is "death with life". 46. Any aspect of life which makes it dignified may be read into Art.21 of the Constitution but not that which extinguish it and is therefore inconsistent with the continued existence of life resulting in effacing the right itself. 47. In Chandigarh Administration (2009)17, the SC held that, " the right of an unborn child to life and personal liberty is protected under Art.21 of the Indian Constitution. The Court held that the State has a duty to protect the life and health of a pregnant women and her unborn child." Hence it may fairly conclude that - The exclusion of unmarried and single women under Rule 3B of the MTP Rules, 2003 is valid as it has made within the framework of the constitution and it does not violate any of the fundamental rights of the appellant. 17 (2009)9 SCC 1 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 20 ISSUE RAISED NO. II: Whether the rule is violative of Article 14 of the Constitution of Sindhia? "It is the duty of every citizen to protect the right of others"18 Every person has dignity and value. One of the ways that we recognize the fundamental worth of every person is by acknowledging and respecting their human rights. Human rights are a set of principles concerned with equality and fairness. They recognize our freedom to make choices about our lives and to develop our potential as human beings. Human rights connect us to each other through a shared set of rights and responsibilities. A person's ability to enjoy their human rights depends on the other people respecting those rights. This means that human rights involve responsibility and duty towards other people and the community. A. No violation of Art. 14 1. State has made no classification between married and unmarried women 2. There has been equal status given to married and unmarried or single women. Over the years, the Parliament has enacted legislation bringing about a congruence between the rights of the married and unmarried women. 3. The Maternity Benefit Act 1961 was enacted to provide maternity benefits to women employed in any establishment. In terms of Section 5 of the Maternity Benefit Act 1961, the payment of maternity benefits is extended to all women (including unmarried women) by the use of the phrase "every women." 18 Martin Luther King Jr. 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 21 4. The Hindu Succession Act 1956 was enacted to codify the law relating to intestate succession among Hindus. Sec. 6 of the Hindu Succession Act 1956 pertains to devolution of interest in coparcenary property. 5. In term of this provision a daughter, irrespective of her marital status, is a coparcenary in her own right in the same manner as the son by virtue of the Hindu Succession (Amendment) Act 2005. 6. Sec. 8 of the Hindu Adoptions and Maintenance Act 1956 stipulates that any female Hindu regardless of her marital status has the capacity to take a son or daughter in adoption. 7. Through the above enactments, the law has emphasized that unmarried women have the same rights as married women in terms of adoption, succession, and maternity benefits. Importantly, these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare. B. Reasonable classification is permitted 8. Article 14 permits classification. The equal protection of law guaranteed by article 14 does not mean that all laws must be in general and universal in character. State can make reasonable classification. 9. International court of justice, explained what is reasonable in crucial words that, “What is reasonable and equitable in any given case must depend on its circumstances”19 There are no specific criteria or parameter to determine reasonableness of action and reasonableness depends upon fact and circumstances of each case. 10. The test of reasonableness as laid down by Sastri C.J. in Madras v. V.G. Row20 has generally been accepted as correct. He said: “it is important… to bear in mind that the test of reasonableness, wherever prescribed should be applied to each individual statute 19 Continental shelf (Tunisia/Libyan Arab Jamahiriya) I C J. rep 1982. 20 1952 AIR 196 1952 SCR 597 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 24 Hence it may fairly conclude that:- The rule 3B of MTP Rules, 2003 does not violate Art.14 of the Constitution of Sindhia as it is made by considering all of the above mentioned fair points. 9th All India Shivaji University Moot Court, ADR Competitions & Vidhi Mela 2024 On behalf of Respondent 25 PRAYER In light of the issues raised, arguments advanced and authorities cited, the Counsel for the Respondent humbly prays to Hon’ble Court – 1. To declare that appeal is not maintainable in the Court of Law. 2. To uphold the decision of the High Court. 3. To declare Rule 3B of MTP Rules, 2003 as valid. AND/OR Any other order, directions, or relief that it may deem fit in the best interests of Justice Fairness, Equity, and Good Conscience be granted. For this act of kindness, the Respondent shall duty-bound forever pray. ALL OF WHICH IS RESPECTFULLY SUBMITTED - COUNSEL FOR THE RESPONDENT