1

Team Code: TC-53

MARWADI UNIVERSITY INTRA MOOT COURT COMPETITION, 2023-24

BEFORE THE HON’BLE HIGH COURT OF PROGRESSA

UNDER ARTICLE 226 OF THE INDIAN CONSTITUTION,1950

IN MATTER OF-

EQUALITY MATTERS INITIATIVE ………….[ PETITIONER]

V.

STATE OF PROGRESSA …………[RESPONDENT]

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORIAL for PETITIONER 2

TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………………..

INDEX OF ABBREVIATION ………………………………………………………………..

STATEMENT OF JURISDICTION…………………………………………………………

STATEMENT OF FACTS…………………………………………………………………..

STATEMENT OF ISSUES………………………………………………………………….
Whether the provisions of the SRRA violate the fundamental right to reproductive autonomy
and personal liberty, as guaranteed under Article 21 of the Indian Constitution?
Whether informing the Government, The reason for the Pre-Natal Test, infringes the Right to
Privacy recognized under Article 21 of the Indian Constitution
Whether the Act can be challenged as discriminatory under Article 15, considering its
potential disproportionate impact on women's rights?
SUMMARY OF ARGUMENTS ……………………………………………………………...

ARGUMENTS ADVANCED…………………………………………………………………

PRAYERS…………………………………………………………………………………….
MEMORIAL for PETITIONER 3

INDEX OF AUTHORITIES

Books
 M P JAIN, INDIAN CONSTITUTION LAW (Eighth Edition)
 SWATI DEVA, LAW AND (IN) EQUALITIES
 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (Fourth Edition) Volume 1
 D.D. BASU, COMMELTARY ON THE CONSTITUTION OF INDIA Volume 3
 D.D. BASU, COMMELTARY ON THE CONSTITUTION OF INDIA Volume 5
 PARVEEN NUZHAT KHAN, WOMEN AND LAW
BARE ACT
 THE INDIAN CONSTITUTION, 1950
 THE MADICAL TERMINATION OF PREGNANCY ACT,(34 OF 1971) 1971
 THE PRE-CONCPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES
(PROHIBITION OF SEX SELECTION )ACT,(57 OF 1994) 1994
JOURNALS
 MADRAS LAW JOURNAL
 BOMBAY LAW JOURNAL
 ALL INDIA REPORTER
CASES
 Suchita Srivastava and Another Versus Chandigarh Administration [2009] 8 MLJ 658
 MS Z VERSUS THE STATE OF BIHAR AND OTHERS LNIND 2017 SC 394
 R v Morgentaler [1990] LRC (Const) 242, [1988] 1 SCR 30, Can SC
 Own Motion v. State of Maharashtra 2017 Cri LJ 218 (Bom HC) : (2016) SCC OnLine
Bom 8426
 XYZ VERSUS UNION OF INDIA AND OTHERS LNIND 2019 BOM 233
 Kartar Singh v State of Punjab, (1994) 3 SCC 569
 Kharak Singh v State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332
 Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6
MLJ 267 ( para 77,80 and 83)
 Kharak Singh v State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332
MEMORIAL for PETITIONER 4

 Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6
MLJ 267
 A.K. Gopalan v State of Madras, AIR 1950 SC 27 : (1950) SCR 88
 Francis v. Union Territory, AIR 1981 SC 746 : (1981) 1 SCC 608 : (1981) 2 SCR 516;

 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248;
 Ramsharan v. Union of India,
 AIR 1989 SC 549 : 1989 (Supp-1) SCC 251 : 1988 (Supp-3) SCR 870.

 Report of National Commission to review the working of the Constitution submitted by Justice
 M.N. Venkatachaliah on 31st March, 2002.
 AIR 1997 SC 3011 : (1997) 6 SCC 241.
 Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248;

 Ramlila Maidan Incident v. Home Secretary, UOI, (2012) 5 SCC 1: 2012 CrLJ 3516 : (2012)
 MEMORIAL for PETITIONER 5

LIST OF ABBREVIATIONS
Abbreviation Term

& And

Art. Article

BOM Bombay High Court

CONST. Constitution

cl. Clause

Govt. Government

HC High Court

LNIND Lexis Nexis India

 MEMORIAL for PETITIONER 6

MLJ Madras Law Journal

Para. Paragraph

SRRA Selective Reproductive Rights Act

SC Supreme Court

V. Versus

i.e. That is

UOI Union of India

MEMORIAL for PETITIONER 7

STATEMENT OF JURISDICTION

The Petitioner has approached the Honourable High Court of Progressa, filling a writ petition
under Article 226 of the Indian Constitution. 1

The present memorial on behalf of the petitioner sets forth the facts, contentions and
arguments in the present case.

1
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or
person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which
the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of
such Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without (a) furnishing to
such party copies of such petition and all documents in support of the plea for such interim order; and (b)
giving such party an opportunity of being heard, makes an application to the High Court for the vacation of
such order and furnishes a copy of such application to the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the
date on which it is received or from the date on which the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall,
on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on
the Supreme court by clause ( 2 ) of Article 32
MEMORIAL for PETITIONER 8

STATEMENT OF FACTS
1. In recent years, the State of Progressa has been grappling with a growing concern regarding its
skewed gender ratio, particularly in certain regions of the country. The declining proportion of
female children compared to male children has raised alarms about the long-term social and
demographic implications of this disparity.
2. To address this issue, the State of Progressa enacted the "Selective Reproductive Rights Act"
(SRRA), a piece of legislation aimed at curbing the practice of selective genderbased abortions and
promoting a more balanced gender ratio. The Act was introduced after extensive debates within the
legislative body and broader public discourse, with proponents arguing that immediate action was
necessary to counter the entrenched preference for male children that has led to gender-based
discrimination.
3. The Act aims to address the practice of selective gender-based abortions, which has contributed
to the disparity in gender demographics. The Act prohibits medical practitioners from performing
abortions solely on the grounds of the gender of the fetus. It also mandates that pre-natal tests to
determine the sex of the fetus may only be conducted for medical reasons, and not for the purpose
of gender selection. Violations of these provisions can result in penalties for medical professionals
and parents.
4. The Act's proponents argue that it is a necessary step to counter gender-based discrimination and
ensure a more balanced demographic composition. The Act's proponents argue that it is a necessary
step toward achieving gender balance and combating the societal preference for male children. They
emphasize that the Act intends to counteract a deep-rooted problem that has led to gender-based
discrimination and imbalanced demographics.
5. The critics, including the "Equality Matters Initiative," contend that the Act undermines women's
reproductive rights and perpetuates harmful gender stereotypes. The Initiative, a coalition of civil
society organizations, asserts that the SRRA interferes with women's autonomy and right to make
informed decisions about their own bodies. They view the Act as an overreach by the state into
personal and private matters, and as an insufficient response to the broader societal issues
contributing to gender inequality.
6. With these conflicting viewpoints and constitutional implications, the "Equality Matters Initiative"
has filed a constitutional challenge before the High Court of Progressa, arguing that certain
provisions of the SRRA violate fundamental rights enshrined in the Constitution. The case has
garnered significant attention, highlighting the complexities of balancing social concerns with
individual rights in the modern era.
MEMORIAL for PETITIONER 9

STATEMENT OF ISSUES

ISSUE I
Whether the provisions of the SRRA violate the fundamental right to reproductive autonomy
and personal liberty, as guaranteed under Article 21 of the Indian Constitution?
ISSUE 2
Whether informing the Government, The reason for the Pre-Natal Test, infringes the Right to
Privacy recognized under Article 21 of the Indian Constitution
ISSUE 3
Whether the Act can be challenged as discriminatory under Article 15, considering its
potential disproportionate impact on women's rights?
MEMORIAL for PETITIONER 10

SUMMARY OF ARGUMENTS

ISSUE 1
WHETER THE SRRA VIOLATES THE FUNDAMENTAL RIGHTS OF
REPRODUCTIVE AUTONOMY AND PERSONAL LIBERTY AS GUARANTEED
UNDER ARTICLE 21 OF THE INDIAN CONSTITUTION?
The SRRA violates the Fundamental Rights of Reproductive Autonomy and Personal Liberty
of a woman, as guaranteed under Article 21 of The Indian Constitution as it takes away a
woman’s right of making informed choices, as well as diminishes the stature of woman to just
an object of regulation.
ISSUE 2
WHETHER INFORMING THE GOVERNMENT, THE REASON FOR THE PRE-
NATAL TEST, INFRINGES THE RIGHT TO PRIVACY RECOGNISED UNDER
ARTICLE 21 OF THE INDIAN CONSTITUTION?

Informing the Government, the reason for the Pre-Natal Test, infringes the Right to Privacy,
recognized under Article 21 of the Indian Constitution, as it violates the personal freedom of
the parents, and creates a mechanism for the state to interfere and regulate the privacy of the
parents, especially the mothers.
ISSUE 3
WHETHER THE SRRA IS DISCRIMINATORY UNDER ARTICLE 15 OF THE
INDIAN CONSTITUTION AS IT CAUSES DISPROPORTIONATE IMPACT ON
WOMEN’S RIGHTS?
The SRRA is discriminatory under Article 15 of the Indian Constitution as it causes
disproportionate impact on women’s right as it contains many lacunae, which can be used to
violate the equality of a woman and bring serious consequences to the mental and physical
health of woman and child.
MEMORIAL for PETITIONER 11

ARGUMENTS ADVANCED

THE SRRA VIOLATES THE FUNDAMENTAL RIGHTS OF REPRODUCTIVE

AUTONOMY AND PERSONAL LIBERTY AS GUARANTEED UNDER ARTICLE 21
OF THE INDIAN CONSTITUTION
SRRA VIOLATES THE REPRODUCTIVE AUTONOMY OF A WOMAN
It is humbly submitted that reproductive autonomy of an individual refers to an individual’s
right and ability to make informed choices and discussions regarding their reproductive and
sexual health without any influence, coercion or interference. Reproductive autonomy also
encompasses the freedom to decide whether or when to have children or the number of
children to have and the time space between two consecutive pregnancies.

It is humbly submitted that in the case of Suchita Srivastava and Another Versus
Chandigarh Administration2 [2009] 8 MLJ 658, The Honourable Supreme Court observed
that, “There is no doubt that a woman’s right to make reproductive choices is also a
dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India. It
is important to recognise that reproductive choices can be exercised to procreate as well as to
abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity
and bodily integrity should be respected. This means that there should be no restriction
whatsoever on the exercise of reproductive choices such as a woman’s right to refuse
participation in sexual activity or alternatively the insistence on use of contraceptive methods.
Furthermore, women are also free to choose birth-control methods such as undergoing
sterilisation procedures. Taken to their logical conclusion, reproductive rights include a
woman’s entitlement to carry a pregnancy to its full term, to give birth and to subsequently
raise children.” This judgement given by the Honourable SC has recognized that a woman’s
right to reproductive autonomy is a dimension of Article 21 of the Constitution:
It is humbly submitted that in the case of MS Z Versus The State of Bihar and OTHERS3 ,
The Honourable SC observed that, “Reproductive choice should be respected in spite of other
factors such as the lack of understanding of the sexual act as well as apprehensions about her
capacity to carry the pregnancy to its full term and the assumption of maternal responsibilities
thereafter.”
It is humbly submitted that in the case of, The Supreme Court of Canada In R v
Morgentaler4, held that ‘security of the person’ encompasses a notion of personal autonomy
involving … control over one’s bodily integrity free from state interference.

2
Suchita Srivastava and Another Versus Chandigarh Administration [2009] 8 MLJ 658
3
MS Z VERSUS THE STATE OF BIHAR AND OTHERS LNIND 2017 SC 394
4
R v Morgentaler [1990] LRC (Const) 242, [1988] 1 SCR 30, Can SC
MEMORIAL for PETITIONER 12

It is humbly submitted that the provisions of the SRRA is a clear violation of a woman’s
reproductive autonomy as it instructs a woman on her reproductive choices and regulates her
reproductive rights which impairs her status in the society.

SRRA VIOLATES THE PERSONAL LIBERTY OF THE PARENTS

It is humbly submitted that The Bombay High Court in High Court on its Own Motion v.
State of Maharashtra 2017,5 it was observed as follows:
“14. A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the
only way out of a very difficult situation for a woman. An abortion is a carefully considered
decision taken by a woman who fears that the welfare of the child she already has, and of
other members of the household that she is obliged to care for with limited financial and other
resources, may be compromised by the birth of another child. These are decisions taken by
responsible women who have few other options. They are women who would ideally have
preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not
want to continue with the pregnancy, then forcing her to do so represents a violation of the
woman’s bodily integrity and aggravates her mental trauma which would be deleterious to
her mental health.”
It is humbly submitted that, in XYZ v. UNION OF INDIA AND OTHERS,6 The Division
Bench of the Bombay High Court then noted that the right of woman to say no to motherhood,
emerges from her human right to live with dignity as a human being and is protected as a
fundamental right under Article 21 of the Constitution , no doubt, subject to the reasonable
restrictions as contemplated under MTP. The Division Bench has observed that human rights
are natural right and thus a woman has a natural right in relation to her body which includes
her willingness to be a mother or her unwillingness to be a mother. The Division Bench has
observed that , section 3 (2) of the MTP Act is an extension of the human right of a woman
and this needs to be protected. Woman owns her body and has right over it. Abortion is
always a difficult and careful decision and woman alone should be the choice maker. A child
when born and takes first breath, is a human entity and thus, unborn foetus cannot be put on a
higher pedestal than the right of living woman. Thus, the right of reproductive choice though
restricted by , MTP Act, recognises and protects her right to say no to the pregnancy if her
mental or physical health is at stake.
It Is humbly submitted that in the case of Kartar Singh v. State of Punjab7 , it was held that,
Article 21 is a declaration of deep faith and belief in human rights. In this pattern of
guarantee woven in Chapter III of this Constitution, personal liberty of man is at the root of
Article 21 and each expression used in this article enhances human dignity and values. It lays
foundation for a society where rule of law has primacy and not arbitrary or capricious
exercise of power.

5
Own Motion v. State of Maharashtra 2017 Cri LJ 218 (Bom HC) : (2016) SCC OnLine Bom 8426

6
XYZ VERSUS UNION OF INDIA AND OTHERS LNIND 2019 BOM 233

7
Kartar Singh v State of Punjab, (1994) 3 SCC 569
MEMORIAL for PETITIONER 13

It Is humbly submitted that in the case of Kharak Singh v. State of U.P .8, while examining
the width, scope and content of the expression “personal liberty” in this Article, it was held
that the term is used in this Article as a compendious term to include within itself all varieties
of rights which goes to make up the “personal liberties” of man other than those dealt within
several clauses of Article 19(1)9 . While Article 19(1) deals with the particular species or
attributes of that freedom, “personal liberty” in Article 21 takes on and comprises the residue.

INFORMING THE GOVERNMENT, THE REASON FOR THE PRE-NATAL TEST,

INFRINGES THE RIGHT TO PRIVACY RECOGNISED UNDER ARTICLE 21 OF
THE INDIAN CONSTITUTION
SECTION (5.1) OF THE SRRA DOES NOT CLARIFIES THE PHRASE “FOR MEDICAL
REASONS “ , WHICH IS THE MAIN CRUX OF THE ACT
It is humbly submitted that, Section 4(2) of “The Pre-Conception And Pre-Natal Diagnostic
Techniques (Prohibition Of Sex Selection) Act, 1994”, defines the phrase medical reasons “as
2. no pre-natal diagnostic techniques shall be conducted except for the purposes of detection
of any of the following abnormalities, namely:—
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board
It is to the humble submission that, Section 5.1 of SRRA reads,
“Pre-natal tests to determine the sex of the foetus may only be conducted for medical reasons,
as determined by a registered medical practitioner.”
Therefore , it is humbly submitted that, the SRRA leaves the definition of “for medical
reasons “ to the discretion of the medical practitioner and thus gives the medical practitioner
the full rights over a woman reproductive autonomy and personal liberty.
SRRA’S PROVISION OF DISCLOSING THE REASON FOR THE PRE-NATAL TEST
INFRINGES THE RIGHT TO PRIVACY OF THE PARENTS
It is humbly submitted, in the case of Justice K S Puttaswamy (Retd.) and Another Versus
Union of India and Others10 as Justice Sanjay Kishan Kaul, J. held that The right of privacy
is a fundamental right. It is a right which protects the inner sphere of the individual from
interference from both State, and non-State actors and allows the individuals to make
autonomous life choices. The right of privacy cannot be denied, even if there is a miniscule

8
Kharak Singh v State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332

9
INDIAN CONST. Art. 19,cl.1
10
Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267 ( para 77,80
and 83)
MEMORIAL for PETITIONER 14

fraction of the population which is affected. The majoritarian concept does not apply to
Constitutional rights and the Courts are often called up on to take what may be categorized as
a non-majoritarian view, in the check and balance of power envisaged under the Constitution
of India . One’s sexual orientation is undoubtedly an attribute of privacy. Let the right of
privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the
Constitution of India , but subject to the restrictions specified, relatable to that part.
It is humbly submitted that in the decision in Kharak Singh v. State of Uttar Pradesh11 ,
held that content of expression ‘life’ under Article 21 means not merely right to person’s
“animal existence” and that expression ‘personal liberty’ is guarantee against invasion into
sanctity of person’s home or intrusion into personal security.
It is humbly submitted that in the case of Justice K.S. Puttaswamy (Retd.) and Another v.
Union of India and Others 12 , the Honourable SC held that the decision of a woman to
procreate or abstain from procreating has been recognized as a facet of her right to lead a life
with dignity and the right to privacy under Article 21 of the Constitution:
“298. [p]rivacy of the body entitles an individual to the integrity of the physical aspects of
personhood. The intersection between one’s mental integrity and privacy entitles the
individual to freedom of thought, the freedom to believe in what is right, and the freedom of
self determination. When these guarantees intersect with gender, they create a private space
which protects all those elements which are crucial to gender identity. The family, marriage,
procreation and sexual orientation are all integral to the dignity of the individual. Above all,
the privacy of the individual recognises an inviolable right to determine how freedom shall be
exercised.”
It is to the humble submission that, the early approach to Article 21 whichh generates right to
life and personal liberty was circumscribed by literal interpretation, in the case of A.K.
Gopalan v. State of Madras 13 . But in course of time, the scope of this application of the
articles against arbitrary encroachment by the Executive has been expanded by liberal
interpretation of the components of the article in tune with the relevant international
understanding, with many case like, Franscis v. Union Territory14 , Ramsharan v. Union
of India 15 , Menka Gandhi v. Union of India16 . Thus, protection against arbitrary
privation of “life” no longer means mere protection of death, or physical injury, but also an
invasion of the right to “live” with human dignity and would include all these aspects of life
which would go to make a man’s life meaningful and worth living, such as his tradition,
culture and heritage.

11
Kharak Singh v State of U.P., AIR 1963 SC 1295: (1964) 1 SCR 332
12
Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

13
A.K. Gopalan v State of Madras, AIR 1950 SC 27 : (1950) SCR 88

14
Francis v. Union Territory, AIR 1981 SC 746 : (1981) 1 SCC 608 : (1981) 2 SCR 516;

15
Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248;
16
Ramsharan v. Union of India,
AIR 1989 SC 549 : 1989 (Supp-1) SCC 251 : 1988 (Supp-3) SCR 870.
MEMORIAL for PETITIONER 15

It is humbly submitted that,under the Review Commission Recommendations, by Justice

M.N. Venkatachaliya 17 , on the review of the working of the Constitution, it was
recommended in section 21B of part 3.12 of the Constitution that it is, therefore, proposed
that a new Article, namely Article 21-B should be inserted on the following lines:

21-B. (1) Every person has a right to respect for his private and family life, his home and his
correspondence

It is humbly submitted that Article 21 of the Constitution of India guarantees right to life with
dignity for every individual. In a catena of decisions of the Supreme Court of India,
prisoner’s rights have been read into the guarantee under Article 21. The Supreme Court has
also held in Vishaka v State of Rajasthan 18. That provisions of international instruments
and norms can be read into justiciable fundamental rights for filling gaps, if any, or enlarging
the scope thereof as a canon of statutory construction unless there is any inconsistency
between them. It is obvious that the wide meaning given to “right to life” and “personal
liberty” guaranteed by Article 21 is to include therein “life with dignity”, i.e., every aspect of
human life unless it be inconsistent with the need for incarceration, and makes it also a
prisoner’s right to which he is entitled to under Article 21. “Right to live with dignity” is the
quintessence of human right and this is the express constitutional guarantee in India under
Article 21.

It is humbly submitted that, it was held In Maneka Gandhi’s case 19 that the expression
“personal liberty” in Article 21 is of the widest amplitude and it causes a variety of rights
which go to constitute the personal liberty of man and some of them have been raised to the
status of distinct fundamental rights and given “additional protection” under Article 19. Right
to privacy is one such right.

It is humbly submitted that, in Ramlila Maidan Incident v. Home Secretary20 , it was held
that privacy and dignity of human life have always been considered as the fundamental rights
of every human being like any other key values such as freedom of association and freedom
of speech.

17
Report of National Commission to review the working of the Constitution submitted by Justice
M.N. Venkatachaliah on 31st March, 2002.
18
AIR 1997 SC 3011 : (1997) 6 SCC 241.
19
Maneka Gandhi v. Union of India, AIR 1978 SC 597 : (1978) 1 SCC 248;

Ramlila Maidan Incident v. Home Secretary, UOI, (2012) 5 SCC 1: 2012 CrLJ 3516 : (2012)
20
MEMORIAL for PETITIONER 16

THE SRRA IS DISCRIMINATORY UNDER ARTICLE 15 OF THE INDIAN

CONSTITUTION AS IT CAUSES DISPROPORTIONATE IMPACT ON WOMEN’S
RIGHTS
It is humbly submitted that,Equality in reproductive health includes access, without
discrimination, to affordable, quality contraception, including emergency contraception. The
decision as to whether to continue a pregnancy or terminate it may shape a woman’s entire
future personal life as well as family life. The decision has a crucial impact on women’s
enjoyment of other human rights. The decision is therefore fundamentally and primarily the
woman’s decision. 21
SECTION (4.1) OF THE SRRA MENTIONS ONLY THE WORD “FOETUS” AND
LEAVES OUT THE WORD “CONCEPTUS”, THUS MAKING IT HOLLOW FROM
INSIDE
It is humbly submitted that,Section 4(1) of the SRRA reads, “No medical practitioner shall
perform an abortion solely on the basis of the gender of the foetus.”
It is humbly submitted that though the act, does not define “foetus”, we can define it from
section 2bc of “The Pre-Conception And Pre-Natal Diagnostic Techniques (Prohibition Of
Sex Selection) Act, 1994”.
Section (2.bc) of THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC
TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994
, defines “foetus” as:
(bc)“foetus” means a human organism during the period of its development beginning on the
fifty-seventh day following fertilisation or creation (excluding any time in which its
development has been suspended) and ending at the birth;
It is humbly submitted that, this definition clearly states that the day from which the unborn
baby can be termed as foetus, is from the fifty-seventh day following the day of conception.
Thus, by this definition, it leaves a gap of fifty-seven days that a baby can be aborted and still
will not be penalized under this act. But to the humble submission of the council, there arises
a question to what is the term that can be used to describe a baby prior to it being called as a
foetus, the answers lies in the Section 2ba of “The Pre-Conception And Pre-Natal Diagnostic
Techniques (Prohibition Of Sex Selection) Act, 1994”, where the word “conceptus” is defined,
Section (2.ba) of THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC
TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994, defines
“conceptus” as:

21
United Nations Human Rights, Office of the High Commissioner
MEMORIAL for PETITIONER 17

(ba) “conceptus” means any product of conception at any stage of development from
fertilisation until birth including extra embryonic membranes as well as the embryo or foetus;
Thus, it is humbly submitted that The SRRA does not radiates the gender equality, that it
wishes to, but is discriminatory under Art.13.2, Art.14 and Art.15 of the Indian Constitution,
as it discriminates women on the basis of the tenure that a woman opts for sex selection and
sex selective abortion.
It is humbly submitted that, the only use of the word “foetus”, represents the disproportionate
gaps that the act emit, and the lack of the word “conceptus”, shows the government’s stance
of controlling women, rather than protecting them.
It is humbly submitted that under the Art.12 of the Indian Constitution, it defines “State” as
Government and the Legislature of each state and all local or other authorities within the
territory of India or under the control of the Government of India.
Thus, according to the moot proposition, The State of Progressa, falls under the ambit of the
term “State” as in Art.12.22
It is also humbly submitted that, under Art.13(2)23 of the Indian Constitution, it is adopted
that the State shall not make any law which takes away or abridges the rights conferred by
Part Three of the Indian Constitution, in so far as they are inconsistent with the provisions of
Part Three, to the extent of such inconsistency be void.
It is also brought to the humble submission that Art.1424 of the Indian Constitution, says that
“ The State shall not deny to any person equality before law or equal protection of laws
within the territory of India “.
Also, humbly submitted is that, Art.15(125) , says,” The State shall not discriminate against
any citizen on ground only of religion, race, caste, sex, place of birth or any of them.“
Thus, it is humbly submitted that the SRRA of Progressa, truly violates the equality
prescribed for every citizen, which includes women, by omitting the word “conceptus”, and
thus containing the scope of the act to just abortion of “foetus” through sex-selection and not
the “conceptus”.

SRRA ONLY CONSIDERS “PRE-NATAL TESTS “ AS THE SOURCE OF SEX

SELECTION AND MENTIONS LEAVES OUT THE “PRE-CONCEPTUAL SEX
SELECTION TECHNIQUES “
It is to the humble submission that, the Selective Reproductive Rights Act (SRRA) of
Progressa, which claims to be enacted for curbing the practice of selective gender-based
abortion and promoting a more balanced gender ratio, through regulating the “Pre-Natal
Test” . But there is no definition provided about it. The definition of “Pre-Natal Diagnostic

22
INDIAN CONST. Art. 12

23
INDIAN CONST. Art. 13, cl.2

24
INDIAN CONST. Art. 14

25
INDIAN CONST. Art. 15,cl.1
MEMORIAL for PETITIONER 18

Techniques “ is been mentioned in the section (2k) of The Pre- conceptus and Pre-Natal
Diagnostic Techniques Act,1994.
Section (2k) of THE PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC
TECHNIQUES (PROHIBITION OF SEX SELECTION) ACT, 1994, defines “Pre-Natal
Tests” as:
(k)“pre-natal diagnostic test” means ultrasonography or any test or analysis of amniotic fluid,
chorionic villi, blood or any tissue or fluid of a pregnant woman or conceptus conducted to
detect genetic or metabolic disorders or chromosomal abnormalities or congenital anomalies
or haemoglobinopathies or sex-linked diseases;
It is humbly submitted that, the above mentioned definition only limits the scope of the tests
to be carried after conception, but lacks the mention of “Preconception Sex Selection
Techniques “, like sperm sorting and IVF, which is another type of sex selection techniques of
modern times.
Preconception sex selection involves sperm sorting, i.e. separating sperm cells that carry
the X chromosome (gynogenic sperm) from sperm cells that carry the Y chromosome
(androgenic sperm). The enriched sperm sample may ideally be used in artificial insemination
(AI), which is less expensive and less invasive than IVF. While various methods of sperm
sorting have been suggested, studied, and commercially offered, flow cytometry is currently
the only option with a demonstrated efficacy.26
Gender selection with IVF and Preimplantation Genetic Testing is the most advanced
method of sex selection with virtually 100% accuracy. During this method, a small number
of cells from an embryo made via IVF are removed from an embryo several days after
fertilization and sent to a genetics lab for chromosomal analysis. After the biopsy, the
embryos are immediately frozen to await the results from the genetic analysis. After the
results are in, a decision is made by the intended parents which embryo to thaw and perform a
frozen embryo transfer with. This method allows you to choose the sex of the child with over
a 99.9% accuracy.27
Gender Selective Foeticide is sanctioned under SRRA. However, by sex selection before
conception with the help of the pre-conception diagnostic techniques, sex of the child is
determined by choosing the male/female chromosome before fertilization and the fertilized
egg is inserted in the womb of the mother. This will not lead to foeticide under the act. Thus
there is, no reason to impose regulation on just the use of the prenatal diagnostic techniques
for sex selection.
Thus, it is humbly submitted that these irregularities in the act, makes it discriminatory under
Art.13(2), Art.14 and Art.15(2) of the Indian Constitution, as it denies the women, right of
sex selection through Pre-Natal Techniques, but does not deny the sex selection through Pre-
conception Techniques, thus making it unequal for women.

26
De Wert G, Dondorp W. Preconception sex selection for non-medical and intermediate reasons: ethical
reflections. Facts Views Vis Obgyn. 2010;2(4):267-77. PMID: 25009714; PMCID: PMC4086011.

27
Gender Selection with IVF: Treatment Details & Cost
By CNY Fertility Updated on December 28, 2021 https://www.cnyfertility.com/gender-selection
MEMORIAL for PETITIONER 19

SRRA DOES NOT CONSIDERS THE FACT THAT HAVING A CHILD OF SAME SEX AS
THAT OF THE EXISTING CHILD/CHILDREN CAUSES GRAVE MENTAL INJURY TO
A WOMAN
It is humbly submitted that, The legislature has not taken into consideration the fact that
having a child of the same sex as that of the existing child/children also causes grave mental
injury to a woman. Whereas , MTP Act allows abortion in case a child is conceived on
account of any failure of device used by the couple for the purpose of limiting the number of
children on the ground that anguish caused by such pregnancy may be resumed to constitute a
grave injury to the mental health of the pregnant woman, while enacting the said Act the
legislature has not considered what anguish would be caused to a prospective mother who
conceives a female child or a male child for the second or third time. The legislature has not
appreciated that such anguish must also be termed as grave injury to the mental health of the
prospective mother. Thus, there is discrimination between women situated in similar position.
The said Act, therefore, violates , Article 14 of the Constitution of India. If by one statute
certain rights are conferred upon a prospective mother, the same cannot be denied to a
prospective mother by another statute.
It is to the humble submission that, this instances requires us to look at the Doctrine of
Proportionality. The doctrine assets that there must be a reasonable nexus between the desired
result and the measures to reach that goal. The action taken must not be proportionate to the
consciousness of the court and the said action can then be challenged by the way of Judicial
Review.
The Indian Legal System, in the case of Omkumar v Union of India, the Indian Supreme
Court accepted the doctrine of proportionality as a part of Indian law.
MEMORIAL for PETITIONER 20

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased
to:

A. Declare that, The SRRA violates The Fundamental Rights Of Reproductive Autonomy and
Personal Liberty as guaranteed under Article 21 of The Indian Constitution.
B. Declare that, Informing the Government, the reason for The Pre-Natal Test, infringes the
Right To Privacy recognised under Article 21 of The Indian Constitution.
C. Declare that, the SRRA is discriminatory under Article 15 of The Indian Constitution as it
causes disproportionate impact on Women’s Rights.
OR
PASS ANY OTHER ORDER, DIRECTION OR RELIEF WHICH THIS HON’BLE
COURT MAY DEEM FIT IN INTEREST OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

And for this act of kindness the respondents as are duty bound shall ever pray.

DATE: 28/09/2023 (S/d)

PLACE: High Court of Progressa (Counsels for the Petitioner )