Memo Petitioner

TM-22

BEFORE THE HON’BLE HIGH COURT OF CARAKUN, AT CARAKUN

IN THE MATTER OF: Writ Petition No.___ of 2015

Mr. Awadhesh

- - - - - - - - - - - - - - - - - - - - - - - - - Petitioner

V.

Republic of Tranvenia and Morx Flod Hospital - - - - - - - - - - - - Respondent

Original Writ Jurisdiction Under Article 226 of the Constitution of Tranvenia MEMORANDUM ON BEHALF OF THE PETITIONER

N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION

TABLE OF CONTENTS TABLE OF CONTENTS

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i

LIST OF ABBREVIATIONS

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INDEX OF AUTHORITIES

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iii

STATEMENT OF JURISDICTION

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v

STATEMENT OF ISSUES

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vi

STATEMENT OF FACTS

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vii

SUMMARY OF ARGUMENTS

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viii

PLEADINGS

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1. State has violated Art. 21 under Fundamental Right and Art. 39, Art. 41 and Art. 47 -

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1.1 Right to health as under the ambit of Art. 21 has been violate

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Under Directive Principles of State Policy -

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1.2 State violated the Directive Principles of State Policy as given in the Part IV of the Constitution of Tranvenia

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1.4 Police Officials also violated the Fundamental Right of the deceased. -

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1.3 State violated the Human Rights of the deceased

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2. The Morx Flod Hospital has violated Right to Life and Personal Liberty as Under 6 Article 21 2.1 The writ of Mandamus for the violation of Fundamental Rights by the Morx Flod Hospital is maintainable

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2.2 Morx Flod Hospital has violated the Right to life and personal liberty of the deceased: -

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3.The Act of Hospital authorities and Police Make them liable for abetment of suicide of 13 Mr. Awadhesh under Section 306 of Indian Penal Code 1860 3.1 Hospital Authorities is liable for abetment of suicide of Mr. Awadhesh -

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3.2 Police refrained from their duty which caused Mr. Awadhesh to commit suicide PRAYER

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BIBLIOGRAPHY

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i

MEMORANDUM ON BEHALF OF PETITIONER


LIST OF ABBREVIATIONS Art.

Article

Sec.

Section

¶

Paragraph

IPC

Indian Penal Code

Anr.

Another

Ors.

Others

v.

Versus

WHO

World Health Organisation

AIR

All India Reporter

Cr.

Criminal

Cr.P.C SC DPSP &

Code of Criminal Procedure Supreme Court Directive Principles of State Policy And

COPD

Chronic Obstructive Pulmonary Disease

Hon'ble

Honorable

Pvt. Govt. ICESCR

Private Government International Covenant on Economic, Social and Cultural Rights

ii



INDEX OF AUTHORITIES DOMESTIC CASES CITED S R. NO.

CITED NAME OF THE CASE

AT

1.

All India Lawyers Union (Delhi Unit) v. Govt. of NCT of Delhi ., ILR 1998 Delhi 937

04

2.

Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707

15

3.

Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani and Ors., 1989 AIR 1607

06 & 07

4.

Aphraim Jayanand Rathod v Dr. Shailesh Shah, 1996 (I) CPJ 243; 1996 (1) CPR 547

13

5.

B. L. Nagaraj and Ors. v. Dr. Kantha and Ors., AIR 1996 Kant 82

11

6.

Balram Prasad v. Kunal Saha, (2014) 1 SCC 384

09

7.

Bandhua Mukti Morcha v. Union of India and Ors., 1984 AIR 802

03

8.

C.E.S.C. Ltd. v. Subhash Chandra Bose and Ors., 1992 AIR 573

04

9.

Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi), AIR 2010 SC 1446

17

10.

D.K. Basu v. State of W.B., AIR 1997 SC 610

11

11.

Directors of settlements, A.P. and Ors. v. M. R. Apparao amd Anr., (2002) 4 SCC 638

07

12.

Fattuji Dajiba Gedam v. Superintendent of Police and Ors., I (2003) ACC 434

11

13.

Francis Coralie Mullin v. The Administrator, UT of Delhi and Ors., 1981 AIR 746

03

14.

Kali Bakhsh Singh v. Ram Gopal Singh, (1914) 16 BOMLR 147

13

15.

Kasturi Medical Research Centre Pvt. Ltd. v. Ajayendu Nag, 2010 (1) CPC 524

11

16.

M. Mohan v. State represented by the Deputy Superi. of Police, (2011) 3 SCC 626

15

17.

Mohd. Hoshan, A.P. andAnr. v. State of A.P., (2002) 7 SCC 414

16

18.

Mrs. Aparna Dutta v. Apollo Hospitals Enterprises Ltd., 2002 ACJ 954 (Mad. HC)

09

19.

Paschim Banga Khet Mazdoor Samity v. State of W.B. and Anr., 1996 AIR SC 2426

02

iii


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 20.

Prativa Bose v. Kumar Rupendra Deb Raikat and Ors., 1965 AIR 540

05

21.

Praveen Pradhan v. State of Uttaranchal and Anr., (2012) 9 SCC 734

16

22.

Pt. Parmanand Katara v. UOI and Ors.,(1989) 4 SCC 286

02

23.

Ramesh Kumar v. State of Chhattisgarh, 2001 (9) SCC 618; 2001 CriLJ 4724

12,17

24.

Rani Bhatia v. St. Stephens Hospital Society and Ors., 205 (2013) DLT 630

07

25.

S. K. Garg v. State of U.P. and Ors., 1998 2 UPLBEC 1211

02

26.

S.S. Chheena v. Vijay Kumar Mahajan and Anr., 2010 (12) SCC 190;

15

27.

Santhal Pargana Antyodaya Ashram v. State of Bihar and Ors., 1987 Supp (1) SCC 141

11

28.

Smt. Selvi and Ors. v. State of Karnataka and Anr., AIR 2010 SC 1974

11

29.

Smt. Vandana Dixit v. Visitor S.G.P.G.I. and Ors., 2010 ILR 3 All 1058

08, 10

30.

Sohan Lal v. The Union of India, 1957 AIR 529

06

31.

State of Punjab and Ors. v. Mohinder Singh Chawla, AIR 1997 SC 1225

01

32.

State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors., 1998 AIR 1703

03

33.

State of U.P. v. District Judge, Unnao, AIR 1984 SC 1401

07

34.

Thirumalai Vadivu Ammal and Ors. v. Muthammal and Anr., 1999 (2) CTC 275

09

35.

Tukaram Ganpatrao Surve v. Atmaram Vinayak Gondhalekar, AIR 1939 Bom 31

06

36.

Union of India and Anr. v. S.B. Vohra and Ors., (2004) 2 SCC 150

06

37.

Unni Krishnan, J.P. and Ors. v. State of andhra Pradesh and Ors., 1993 AIR 2178

07

FOREIGN CASES CITED S R. NO

CITED CASE CITED

AT

1.

A.F. Shahab Uddin Ahmed v. National Shooting Federation and Ors, 2010 39 CLC HDC

07 & 08

2.

Billage v. Southee, 21 LJ CH 472; (1852) 9 Hare, 534

14

3.

Reg. v. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864

07

iv



STATEMENT OF JURISDICTION The counsels on behalf of the Petitioner have endorsed their pleading under the aegis of Art. 2261 of the Constitution of Tranvenia. The petitioner would humbly contest the grounds that have been invoked under the aegis of Art. 226 of the Constitution of Tranvenia. 1) The laws of The Republic of Tranvenia are in 'pari materia' with the laws of India. 2) Reservation and treaties entered into by India are to be assumed as reservations and treaties by the Republic of Tranvenia to UDHR. 3) Reports of Law commissions of the Republic of Tranvenia are analogous to those of Law Commission reports of India.

1

Tranvenia Constitution Art.226. Power of High Courts to issue certain writs 1. Notwithstanding anything in Art. 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 Govt., 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 Govt., 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 Govt. 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 Art. shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Art. 32

v



STATEMENT OF ISSUES The following issues are presented before the Hon'ble High Court of Carakun :1.WHETHER

THE

STATE

VIOLATED THE FUNDAMENTAL AND HUMAN RIGHTS OF

MR.

AWADHESH? 1.1

Right to health as under the ambit of Art. 21 has been violated.

1.2

State violated the Directive Principles of State Policy as given in the Part IV of the Constitution of Tranvenia.

1.3

State violated the Human Rights of the deceased.

2.WHETHER

THE

MORX FLOD HOSPITAL

VIOLATED THE

FUNDAMENTAL RIGHTS

OF THE

DECEASED? 2.1

The writ of Mandamus for the violation of Fundamental Rights by the Morx Flod Hospital is maintainable.

2.2

Morx Flod Hospital has violated the Right to life and personal liberty of the deceased.

3.WHETHER THE HOSPITAL AUTHORITIES AND POLICE ARE LIABLE FOR ABETMENT OF SUICIDE OF MR. AWADHESH?

3.1

Hospital Authorities are liable for abetment of suicide of Mr. Awadhesh.

3.2

Police refrained from their duty which caused Mr. Awadhesh to commit suicide.

vi



STATEMENT OF FACTS 1. In the capital, Carakun of the Republic of Tranvenia where problem of corruption persists, Awadhesh, a poor sweeper developed chronic obstructive pulmonary disease (COPD) due to occupational exposure to dust. He was illiterate and ignorant about govt. insurance schemes. 2. He went to govt. hospital for checkup on 30th September 2014, where he was advised to go for a tuberculin skin test, other scans and X-rays, surgical biopsy in a Pvt. clinic, because X ray machines in the govt. hospitals were out of order and pathological tests/blood test facility was not there because of unavailability of Doctors as they were on leave for 3 days. 3. Dr. Gabbaria asked him to go to Morx Flod hospital with a written reference for free checkup. 4. 3rd July- Dr. Daygem asked him to admit for a week assuring him minimum cost for treatment. He gave his thumb impression on a form; details of which was not read out. It authorized the Doctor to perform tests and surgeries involved to cure his issues and if in this course he dies, the Hospital shall not be responsible. It was accompanied with an undertaking to pay 14000/- INR in toto for the accommodation and treatment. The two attendants Mr. Jeane and Mr. Greye made fun of his poverty and even gave him unnecessary sleeping pills. 5. 4th July- He was not allowed to leave to feed his family because of treatment as well as non realization of the sum. 6.

5th July- His family committing suicide due to hunger. But he was restricted to his room by the hospital security guard. He threatened to commit suicide by saying that if he is not let free, abetment of suicide would be filed against them and this was ignored by the hospital staff.

7. 6th July – His health was better. He was allowed to leave but by paying the sum assured added 13 % tax in toto Rs. 15820. They scared him that a criminal complaint will be lodged for assault as well as for non-payment of dues. He decided to sell his kidney for INR 75000 as he was not in a condition to pay. The doctor discussed with others and agreed but he was not paid later. 8. 7th July- After discharging, he went to police station and reported the entire incident and that he was abetted to commit suicide by those hospital attendants but no FIR was lodged. 9. He then went to the Magistrate but was refused. He committed suicide by hanging in his house. 10. The son of the deceased lodged an FIR against the hospital authorities and the police officers for abetment of suicide. The Hon'ble District Court held that it was a case of suicide as hospital authorities succeeded in proving that his mental condition was not good. The matter is listed for hearing before the High Court of the Republic of Tranvenia. vii



SUMMARY OF ARGUMENTS 1. THAT THE STATE HAS VIOLATED THE FUNDAMENTAL RIGHTS AND HUMAN RIGHTS OF MR. AWADHESH. It is humbly submitted before the Hon’ble court that State has done violation of Fundamental Rights bestowed under Art. 21 of the Constitution of Tranvenia. Right to Health is a basic inalienable human right embraced under UDHR and other conventions. The state has an obligation to provide its citizens with basic amenities and in the event of its failure; State shall be made liable for the infringement of the Fundamental Rights, DPSP and International Conventions.

2. THAT

THE

MORX FLOD HOSPITAL

HAS VIOLATED THE

FUNDAMENTAL RIGHTS

OF

MR.

AWADHESH. It is humbly submitted before the Hon’ble court that the writ of Mandamus against the Morx Flod Hospital stands maintainable as it is delivering public function. It has violated the Fundamental Right enshrined under the Art. 21 of the Constitution of Tranvenia. Furthermore, the conventions guide the functioning of even non state instruments thus it is also liable for violating human rights.

3. THAT

THE

HOSPITAL AUTHORITIES

AND

POLICE

COMMITTED

ABETMENT

OF

SUICIDE

OF

MR. AWADHESH. It is also humbly submitted before the Hon’ble court that the Morx Flod Hospital as well as the Police Officials are liable for the abetment of suicide of Mr. Awadhesh as the combined torture and pain inflicted by both put him into a situation where he had to resort to suicide. Hospital confined him wrongfully and put him into a state of mental distress and Police refrained from registering FIR which they are obligated to. Hence, there was abetment of suicide as under Sec. 306 of IPC.

viii



ARGUMENTS ADVANCED 1. WHETHER

THE

STATE VIOLATED

THE

FUNDAMENTAL

AND

HUMAN RIGHTS

OF

MR.

AWADHESH? 1. The council humbly submits before the Hon'ble High Court of Carakun that the fundamental and human rights as prescribed by the Constitution of Tranvenia have been violated by the state. The council bases its arguments on three premises. First, that the state violated Right to Health prescribed as under Art. 21 of Constitution of Tranvenia. Secondly, that the state violated the DPSP as given in the Part IV of the Constitution of Tranvenia. Thirdly, that the state violated the human rights given in UDHR as assessed by the Republic of Tranvenia.

1.1 Right to health as under the ambit of Art. 21 has been violated. 2. The petitioner submits before the Hon'ble High Court "Constitution envisages the establishment of a welfare state at the federal as well as at the state level. 2 Providing adequate medical facilities for the people is an essential part of the obligation undertaken by the Govt. in a welfare state. Art. 21 of the Constitution imposes an obligation on the state to safeguard the right to life of every person".3 3. It has been held that "right to health is integral to right to life. Govt. has a constitutional obligation to provide health facilities. Similarly, the Court has upheld the states obligation to maintain health services. Apart from recognizing the fundamental right to health as an integral part of the Right to life."4 It is very evident that it's the duty of the State to provide and maintain adequate health services. 4. Deceased went to govt. hospital for checkup, where he was advised to go in a Pvt. clinic, because X ray machines in the Govt. hospitals were out of order.5 In a case the Petition was filed regarding the condition of public hospitals such as worn down X-ray equipments etc which should be made available in every public hospitals. The Court held that "Govt. Hospitals in Allahabad are in a bad shape and sneed drastic improvement so as to give proper

2

TRANVENIA CONST., Preamble , Art. 37. De DJ, The Constitution of India, Asia Law House, (1169), 3rd Ed. 4 State of Punjab and Ors. v. Mohinder Singh Chawla, AIR 1997 SC 1225; (1997) 2 SCC 83. 5 Fact Sheet ¶ 3. 3

1 MEMORANDUM ON BEHALF OF THE PETITIONER

N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION medical treatment. The poor people in particular are not given proper medical treatment. This is a welfare State, and the people have a right to get proper medical treatment".6 5. Also in case of Paschim Banga Khet Mazdoor Samity and Ors. v. State of WB and Anr7 the petitioner was seriously injured but due to non availability of beds, the petitioner was not provided treatment in the Govt. hospital. The Apex Court held that "Govt. hospitals run by state are duty bound to extend medical assistance for preserving human life. Failure on the part of the Govt. hospital to provide timely treatment violates Art 21 of the constitution" and a compensation of 25000/- was awarded. 6. From the aforementioned cases, it's quite clear that the judicial pronouncements has held the state liable for not providing basic services like X-ray equipments and beds. Therefore in the present case, it is a duty of the state to provide pathological/blood test facilities and working X-ray equipments which weren't provided by the state and hence failed to perform their duty. 7. The facilities for conducting blood test were unavailable. In Pt. Parmanand Katara v. UOI and Ors.8, it was held that "Art. 21 casts the obligation on the state to preserve life and Govt. hospital's doctors positioned to meet the state obligations are duty bound to extend medical assistance for preserving life". In the present case, doctors were on leave for 3 days9, it was the duty of the state to provide doctors for basic service like blood test for the concerned days. Hence, state breached their duty as per the provisions of Art. 21. 8. Landmark judgment which covered the aspect of right to life as enshrined in Art. 21 of the Constitution was given in the Paschim Banga Khet Mazdoor Samity and Ors. v. State of W.B. and Anr.,10 the court held that, where a writ petition was filed under Art. 226 and the issue was whether the non-availability of health services in the Govt. Hospitals violates Art. 21. "Art. 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Govt. hospitals run by the state and the medical officers employed therein are duty bound to extend medical assistance. Failure on the part of a Govt. hospital on the same results in violation of Art. 21."

6

S. K. Garg v. State of U.P. and Ors., 1998 2 UPLBEC 1211. 1996 AIR SC 2426. 8 (1989) 4 SCC 286. 9 Facts Sheet ¶2. 10 Supra Note 7. 7


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 9. As per the aforementioned cases, the failure of a Govt. run health centre to provide timely treatment is violative of a persons’ right to life.11 Non availability of basic requirements like X-Ray Machines and doctors violates the right to health as enshrined in Art. 21. Right to health is a mandatory duty of State and attending to public health, therefore is of high priorityperhaps the one at the top12 but the State failed to perform this duty which holds a paramount importance for its citizens and therefore State is liable for the infringement of Art. 21.

1.2 State violated the Directive Principles of State Policy as given in the Part IV of the Constitution of Tranvenia. 10. The petitioner submits before the Hon'ble High Court that the State has violated Art. 39(e), 41 and 47 as conferred by the Part IV, Constitution of Tranvenia. "Constitution makers included public health in form of DPSP because they were well-known about it that only inclusion of right to health as F.R. will hive only right but it will not ensure medical facilities". As said in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi and Ors. 13 court said "Right to live with human dignity enshrined in Art. 21 derives its life breath from the DPSP and particularly Clauses (e) of Art. 39 and 41". "These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State has the right to take any action which will deprive a person of the enjoyment of these basic essentials".14 11. Under Art. 47, State shall secure health to its citizens as its primary duty. No doubt Govt. is rendering this obligation by opening Govt. hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people. The Govt. hospital has to provide all facilities for which an employee looks for at another hospital.15 12. Hence it is clear that not only in the Part III but also in Part IV of the constitution, a duty is imposed upon the State to provide medical facilities and to improve public health for the welfare of the citizens. In the present case by not providing timely treatment and basic facilities, the State violated the rights under Part IV of the Constitution.

11

Basu. Durga Das, Comments on the Constitution of India, Lexis Nexis,210 (8th Ed). Vincent Panikurlangara v. Union of India and Ors., 1987 SCR (2) 468. 13 1981 AIR 746. 14 Bandhua Mukti Morcha v. Union of India and Ors., 1984 AIR 802. 15 State of Punjab and Ors. v. Ram Lubhaya Bagga and Ors., 1998 AIR 1703. 12


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 1.3 State violated the Human Rights of the deceased 13. The petitioner submits before the Hon'ble High Court that the State violated the fundamental provision of the Constitution of the World Health Organization (WHO) 194616, Art. 25 of UDHR17 and Art. 12 of ICESCR18. The right to health is a fundamental part of our Human Rights and of a dignified life.19 In the case of C.E.S.C. Ltd. v. Subhash Chandra Bose20, it was elucidated by the Court that "In the light of Arts. 22 to 25 of the UDHR and Art. 12 of ICESCR, right to health is a fundamental human right. It is the most imperative constitutional goal whose realisation requires interaction by many social and economic factors". 14. The United Nations Committee on Economic, Social and Cultural Rights which monitors compliance with the ICESCR adopted an authoritative General Comment 14 on the Right to Health in 2000.21 This comment extends the Right to Health from appropriate health care to adequate sanitation nutrition, occupational and environmental conditions. 15. As said in the case of All India Lawyers Union v. Govt. of NCT of Delhi and Ors.22 "ICESCR obligates State to "respect, protect and fulfilled" their citizens right to health."Respecting" means that Govt. must refrain from taking actions that interfere with people's ability to enjoy their right. "Protecting" means that the State must seek protection against infringement by third parties, such as 16

WHO, Constitution of World Health Organization, Available At: www.who.int/governance/eb/who_constitution_en.pdf, 17 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 18 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. 19 WHO, The Right to Health, Available at: www.ohchr.org/Documents/Publications/Factsheet31.pdf, . 20 1992 AIR 573. 21 WHO, Fact Sheet The Right to Health, Available at: www.who.int/mediacentre/factsheets/fs323_en.pdf, . 22 ILR 1998 Delhi 937.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION healthcare providers, Pvt. industry etc."Fulfilling" means that the Govt. is required to take positive action to implement this right by adopting policies of public resources' allocation to correct the deficiencies."23 16. As held by the Court, the State is duty bound to provide proper health facilities to its citizens which is a basic Human right. The Republic of Tranvenia has ratified UDHR and other conventions. So the State is bound to ratify their laws in respect to the laws stated in these conventions. In the present case, the State has not followed the guidelines stated in Conventions and is liable for violating the Human Rights of the deceased by infringing fundamental provisions of the WHO's Constitution, Art. 25 of UDHR and Art. 12 of ICESCR.

1.4 Police Officials also violated the Fundamental Right of the deceased. 18. The petitioner submits before the Hon'ble High Court that the Police Officials acting on the behalf of State has violated the Art. 21. "It is impossible to put Sec. 154 in a strait jacket formula. Art. 21 requires a fair and just procedure which implies that a police officer can hold an inquiry but if failed then it's arbitrary and violates Art. 21 thus Sec. 154 must be interpreted along with Art. 21."24 19. Also in case of Bhim Singh v. State of J&K25 it was stated that " Police

officers

who

are

custodians of law and order, should have greater respect for the personal liberty of citizens and should not flout the laws by stopping to the bizarre acts of lawlessness and must not become depredators of civil liberties". 20. In the instant case, the police failed in its duty of providing justice to the deceased by overlooking his appalling condition and not registering the FIR26 without even inquiring and weighing the facts and circumstances which he reported like that of wrongful confinement, taking off his kidney, torture and cruelty and finally abetment of suicide. 21. The State of Republic of Tranvenia suffered from the problem of corruption which was a leading issue heading all the other problems therein.27 As rightly said by Kofi Annan, “Corruption hurts the poor disproportionately by diverting funds intended for development, 23

Kuszler.Patricia C., "Global health and the Human Rights Imperative", Asian Journal of WTO and International Health Law and Policy Vo.2(1) March 2007. 24 Prativa Bose v. Kumar Rupendra Deb Raikat and Ors., 1965 AIR 540. 25 AIR 1986 SC 494. 26 Facts Sheet ¶ 9. 27 Facts Sheet ¶1.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION undermining a Govt.’s ability to provide basic services, feeding inequality and injustice28”. In the instant case corruption led to non availability of proper facilities by the Govt., the deceased was referred to the Pvt. hospital and the awful events began thereon.

2. WHETHER

THE

MORX FLOD HOSPITAL VIOLATED

THE

FUNDAMENTAL RIGHTS

OF THE

DECEASED? 23. The council humbly submits before this Hon'ble Court that Morx Flod Hospital has violated the fundamental as well as human rights as prescribed under the Constitution of Tranvenia. Further, as the Morx Flod Hospital is performing a Public Function i.e. health care and hence counsel has approached the High Court of Tranvenia under Art. 226 by the way of writ of Mandamus. The counsel bases its arguments on two premises. First, that writ of Mandamus is maintainable against Morx Flod Hospital for the violation of Fundamental Right as the hospital is performing the public function by providing the Health Care services. Secondly, the Morx Flod Hospital also violated the Right to life and personal liberty of the deceased prescribed as under the Constitution of Tranvenia.

2.1 The writ of Mandamus for the violation of Fundamental Rights by the Morx Flod Hospital is maintainable. 24. The petitioner submits before the Hon’ble Court that writ of mandamus is only granted to compel performance of duties of a public nature.29 or to enforce Pvt. rights when duties of a public nature specially affect Pvt. rights30 or when the Pvt. rights are withheld by police officers, in conclusion with a Pvt. party31. Under Art. 226, writs can be issued to "any person or authority". It can be issued for the enforcement of any of the fundamental rights and for any other purpose.32 25. As said in case of UOI and Anr. v. S.B. Vohra and Ors.33 "A writ of mandamus is issued against a person who has a legal duty to perform, but has failed in and has neglected to do so. 28

United nation Office on Drugs & Crimes, United Nations Convention Against Corruption, available at: https://www.unodc.org/documents/brussels/UN_Convention_Against_Corruption.pdf 29 Sohan Lal v. The Union of India, 1957 AIR 529. 30 Tukaram Ganpatrao Surve v. Atmaram Vinayak Gondhalekar, AIR 1939 Bom 31. 31 Supra Note 29. 32 Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani and Ors., 1989 AIR 1607. 33 (2004) 2 SCC 150.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION Such a legal duty emanates from either in discharge or a public duty or by operation of law". The object of mandamus is to prevent disorder from a failure of justice and required to be granted in all cases where law has established no specific remedy and where justice despite demanded and has not been granted34. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought.35 26. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed, if a positive obligation exists a writ of mandamus cannot be denied.36 27. The Supreme Court has emphasized that the sole purpose of conferring power on the High Court under Art. 226 is to advance cause of justice and to ensure that no one suffers injustice by violation of the law.37 28. Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani38 The words "any person or authority' used in Art. 226 are therefore not restricted to statutory authorities and instrumentalities of the State but may cover any person or body performing public duty. Not the form of the body but the nature of the duty imposed on the body is relevant. 29. As stated in case of Shahab Uddin Ahmed v. National Shooting Federation, Bangladesh and Others39 if the framers meant to confine liabilities insertion of those additional words "any person or authority would not have been there. This is to be remembered that "Parliament does nothing in vain". Hence, non Govt.al bodies yet performing important public function, like Pvt. universities, Pvt. hospitals etc are considered. 30. A body is performing a "public function" when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public. Public functions need not be the exclusive domain of the state.40 Further in case of Reg. v. Criminal Injuries Compensation Board41, it was held that “Source or origin based approaches' are typically axiomatic. The "function based approach" is erected on the theme that a body performs “public function” 34

Directors of settlements, A.P. and Ors. v. M. R. Apparao amd Anr., (2002) 4 SCC 638. Rani Bhatia v. St. Stephens Hospital Society and Ors., 205 (2013) DLT 630. 36 Supra Note 32 at p.6. 37 State of U.P. v. District Judge, Unnao, AIR 1984 SC 1401 see also, Roshan Deen v. Preeti Lal, AIR 2002 SC 33. 38 1989 AIR 1607.; See Also Unni Krishnan, J.P. and Ors. v. State of andhra Pradesh and Ors., 1993 AIR 2178. 39 2010 39 CLC (HCD). 40 Judicial Review of Administrative Action (Fifth Edn.) by de Smith, Woolf and Jowell in Chapter 3 para 0.24 41 [1967] 2 Q.B. 864. 35


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public. 31. Pvt. bodies exercise public functions when they intervene or participate in social or economic affairs in the public interest. A body is performing a public function when it provides 'public goods' or other collective services, such as health care, education and personal social services, from fund raised by taxation.42 32. In the instant case, counsel humbly submits the writ of Mandamus is maintainable against the Morx Flod Hospital as it was engaged in providing the health care facilities which comes under the domain of public function as can be explicitly derived from the aforementioned cases. Duty of Health care being the apex or the primary duty of the state cannot deem to be a non public function if performed by a Pvt. hospital as performance of the public functions is not restricted to public bodies and is not exhaustive in nature. Hence, as writ of mandamus stands maintainable the counsel moves before the High Court of Tranvenia against the infringement of Fundamental Rights of the Deceased.

2.2 Morx Flod Hospital has violated the Right to life and personal liberty of the deceased. 33. The petitioner submits before the Hon’ble Court that the chain of incidents performed by the Morx Flod Hospital against the deceased has violated his Right to Life and Personal Liberty mentioned under Art. 21 of Constitution of Tranvenia. The incidents occurred are the symbols of torture and cruelty on the part of Morx Ford hospital. 34. The expression “life” enshrined in Art. 21 of the constitution does not connote mere animal existence whereas it has a much wider meaning. The Right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which make life worth living43. The Hospital is not doing only commercial activity or business for earning huge profits but also social service and is supposed to provide right , effective and prompt medical treatment and health care like any other Govt. hospital, therefore, it cannot violate the spirit and soul of Art. 21 of the Constitution.44

42

Supra Note 39 at p.7. Glanrock Estate(P) Ltd. v. State of T.N., 2010 (10) SCC 96. 44 Smt Vandana Dixit v. Visitor S.G.P.G.I. and Ors., 2010 ILR 3 All 1058. 43


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 35. The patient irrespective of their social, cultural and economy background are entitled to be treated with dignity which not only forms their fundamental right but also their human right45. In the instant case after being admitted into the hospital the deceased was humiliated by the two hospital attendants Mr. Jeane and Mr. Greye who used to make fun of his poverty which added to his mental agony. Furthermore they administered him with unnecessary sleeping pills which were against the purpose for which he was admitted for treatment. The principle of Vicarious Liability applies in a way that even if the staffs are negligent, hospital authorities are just as liable as anyone else. Whenever there is deficiency of service or negligent behavior on the part of employees the hospital must be held liable and it cannot escape by stating that there is no master servant relationship.46 Hence, deceased was deprived of his right to a dignified life as under art. 21 of the Constitution of Tranvenia by the Morx Flod Hospital. 36. When the deceased went to the Morx Flod hospital for getting admitted for a week long observation and a contract was provided to him to which he gave his thumb impression in front of two witnesses but without reading the facts mentioned in that form as well as the undertaking.47 Where the executants of a deed is an illiterate person it is incumbent that the contents of the deed are read out and explained to such executants.48 On appropriate appreciation of evidence it was held that the plaintiff who was illiterate was ignorant of contents of document and hence execution of such document was not intended and she never intended to sign any settlement deed and hence it was declared as void. 1999.49 Law presumes the doctor to be in a dominating position, hence the consent should be obtained after providing all the necessary information.50 37. In the instant case, the deceased was illiterate (as can be derived from the fact that he could not sign and gave his thumb impression). All the more, the details of the agreement were not read out to him which states that the maxim of non est factum applies here. There has been no attempt to show that the contents of the agreement were duly explained to him so that informed consent can be taken. Hence, this contract is not valid. This event shows that the hospital authorities acted negligently from the very outset followed by a chain of events. 45

Balram Prasad v. Kunal Saha., (2014) 1 SCC 384. Mrs. Aparna Dutta v. Apollo Hospitals Enterprises Ltd., 2002 ACJ 954 (Mad. HC). 47 Facts Sheet ¶5. 48 Smt. Sita Bewa v. Gangadhar Bharati and Ors., AIR 1999 Ori. 154. 49 Thirumalai Vadivu Ammal and Ors. v. Muthammal and Anr., 1999 (2) CTC 275. 50 Omprakash V. Nandimath., Consent and Medical Treatment : The legal paradigm in India, Available at: (www.ncbi.nlm.nih.gov/pmc/Art.s/PMC2779959/ ). 46


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 38. The Tranvenia Medical Council (Professional, Etiquette and Ethics) Regulations Act 2002 generated by the Medical Council of Tranvenia states under its Appendix 1.8 that a physician, engaged in the practice of medicine shall give priority to the interests of patients, the personal financial interests should not conflict with the medical interests, a physician should announce his fees before rendering service. Remuneration received for such services should be in the form and amount specifically announced to the patient.51 39. In the instant case the Morx Flod Hospital is the most advanced hospital of the state 52 and should be registered under Medical Council of Tranvenia. It has violated the Regulations stated under the aforementioned act by not allowing the deceased to go out of the hospital even after his treatment was completed only for the financial interest which was gained by the hospital. The greed of the Hospital is clear as knowing the fact that Mr. Awadhesh is illiterate they made a contract with him without reading out the terms and hence the hospital violated The Tranvenia Medical Council (Professional, Etiquette and Ethics) Regulations Act 2002 Appendix 1.8. 40. The Tranvenia Medical Council (Professional, Etiquette and Ethics) Regulations Act 2002 generated by the Medical Council of Tranvenia states under its Appendix 1.9 that a physician neither violate nor assist others to violate the laws regulating the practice of medicines. He should be cooperative in observance of regulations in the interest of public health. The Act like Transplantation of Human Organ Act, 1994 and etc.53 41. As in instant case Morx Flod Hospital was in a dominant position because of the signing of the form by the deceased because of which he was left with no other way than to sell his kidney.54 Keeping in view the act and the rules regarding transplantation, the object of the legislature was to control the mischief of illegal removal and transplantation and to protect such human being, who was under economic compulsion and made the poverty bargain.55 The selling of kidney is an illegal act but from the above mentioned clause the physician should

51

Medical Council of India, Code of Ethics Regulation, 2002, Available at: http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx, . 52 Facts Sheet ¶3. 53 Supra Note 51 at p.10. 54 Facts Sheet ¶7. 55 Supra Note 44 at p.8.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION not violate the sub-section 3 of section 956 Transplantation to Human Organ Act, 1994 in which "Authorization committee means a panel of members as nominated by the State Govt."57 and also should not performed the operation as they know that the act which deceased wants to commit is illegal in a court of law. 42. Art. 1 of UDHR provides that all human being are born free and equal with dignity and rights and Art. 5 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment of punishment.58 The right inherited under Art. 21 of the Constitution requires to be jealously and scrupulously protected. The expression 'life or personal liberty' in Art. 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.59 Any form of torture or cruelty, inhuman or degrading treatment would fall within the inhibition of Art. 21, whether it occurs during investigation, interrogation or otherwise.60 43. The petitioner humbly submits before the Hon'ble High Court that the chain of event starting from the signing of the form without proper consent of deceased then making fun of his poverty and giving him unnecessary sleeping pills, not letting him go out of the hospital because hospital has not realized the sum as per undertaking 61 and taking of his kidney are leading to a state of torture for the deceased by the Morx Flod Hospital is the violation of the Art. 5 of UDHR, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment" though Tranvenia is signatory to this Convention yet it has not been ratified by Parliament nor has any correspondence legislation been enacted under Art. 253- therefore courts are not absolutely bound by Convention but it represents evolving international consensus on human rights norms.62 44. In the case of Kasturi Medical Research Centre v. Ajayendu Nag63 the court held that "the personal financial interests should not conflict with the medical interests". In the instant case hence it can be derived that the drops of awful incidents and mishaps done to the deceased by

56

Sec 3(9) reads as; this lays down that an unrelated donor, for reasons of "affection or attachment towards the recipient" may donate his kidney provided the donation is aproved by the Authorization Committee. 57 B. L. Nagaraj and Ors. v. Dr. Kantha and Ors., AIR 1996 Kant 82. 58 Santhal Pargana Antyodaya Ashram v. State of Bihar and Ors., 1987 Supp (1) SCC 141. 59 D.K. Basu v. State of W.B., AIR 1997 SC 610. 60 Fattuji Dajiba Gedam v. Superintendent of Police and Ors., I (2003) ACC 434. 61 Fact Sheet ¶4. 62 Smt. Selvi and Ors. v. State of Karnataka and Anr., AIR 2010 SC 1974. 63 2010 (1) CPC 524.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION the hospital authorities created a pool of mental agony, torture and depression which depicts a clear violation of his fundamental right under Art. 21 of Constitution of Tranvenia. In all circumstance mentioned above, it depicted the greed of the Hospital to earn rather than to have consideration about the human life, it has been held that the personal interest shall never conflict with the medical interest of the patient but in the particular incident that's not been the case. Therefore, hospital authorities are liable for infringement of Right to life and personal liberty of the deceased.

3.WHETHER

THE

HOSPITAL AUTHORITIES

AND

POLICE

ARE

LIABLE

FOR

ABETMENT

OF

SUICIDE OF MR. AWADHESH? 45. The petitioner humbly submits before the Hon’ble High Court that the hospital authorities and the state, both have abetted the suicide of Mr. Awadhesh and that he was not suffering with any mental illness. The basis of argument shall be made on two premises. First, Hospital Authorities abetted the suicide of Mr. Awadhesh and Secondly, Police was also a cause for the abetment of suicide of Mr. Awadhesh.

3.1 Hospital Authorities are liable for abetment of suicide of Mr. Awadhesh. 46. To prove a charge under Sec. 306 of IPC it is mandatory to show that the deceased committed suicide and there was no accidental cause of death other than suicide.64 In the present case there is no dispute regarding the death of Mr. Awadhesh and it's clear from the facts that he committed suicide. 47. The necessary ingredient to prove abetment of suicide is that the “accused instigated or abetted for committing suicide and there is direct involvement by the accused in such instigation.” Instigation not only involves direct aid or communication but can also be drawn when the deceased is put under such circumstances when there is no other option but to commit suicide. As held in the case of Ramesh Kumar v. State of Chhattisgarh65, where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased resorted to commit suicide, “Court held that in such circumstances an instigation may be inferred.” The petitioner’s case solely lies on the fact that Mr. Awadhesh was put

64 65

Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa Nagpur, 708 (31st ed.). 2001 (9) SCC 618; 2001 CriLJ 4724.


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION under such circumstances by the Hospital Authorities. There were various circumstances which led Awadhesh to commit suicide. 48. The Hospital Authorities have breached various duties that they were expected to perform. First, being the validity of the contract. In a situation where Mr. Awadhesh is an illiterate person, it was the duty of the hospital authorities to make him understand the contract. In Kali Bakhsh Singh v. Ram Gopal Singh66, the Court held that “documents drafted in foreign or alien language has to be properly explained to the person who is unable to understand it and the contract can’t be said to be binding just on the grounds that the party has a signature to it.” Also in case of Aphraim Jayanand Rathod v Dr. Shailesh Shah67 as per Section 2(1) of CPA it was held that “Physician must discuss with his/her patient to fully obtain informed consent.” The deceased was promised a minimal cost treatment but while taking the signature, undertaking had the terms regarding the cost of seven days treatment. He affixed his thumb impression on it, hence it's quite evident that the hospital authorities had the knowledge of his illiteracy, but did not explain the contract to him and hence they breached in their duty. 49. When he was admitted in the hospital, the two hospital attendants made fun of his poverty and moreover gave him unnecessary sleeping pills. “The right to be free from poverty includes the human right to be free from gender or racial discrimination. Also it states that the principle of non-discrimination applies to all State policies and practices, including those concerning health care".68 This was again a part of negligence by the hospital authorities and amounted to mental torture for Mr. Awadhesh who was already in a pitiable condition suffering from his own disease. 50. Mr. Awadhesh could not afford to stay there for even a single day as he was the only bread earner of the family consisting of four children and a wife. But as the hospital authorities did not recover the sum of the void contract, he was restrained by the hospital authorities. Even when his whole family committed suicide due to hunger, he was confined. A patient when admitted has the right to choose to discontinue the treatment whenever he/she wants to. Hospitals do not have any right whatsoever to illegally detain the patient for non-payment of their dues.69 This was a case of wrongful confinement by the Hospital Authorities which

66

(1914) 16 BOMLR 147. 1996 (I) CPJ 243; 1996 (1) CPR 547. 68 Law Commission Report no. 223, ¶1.4, p.11. 69 Trevor Nerves Britto v. State of Maharashtra & Ors., WRIT PETITION No. 2359 OF 2014, Order 1, p.2. 67


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION added to the mental torture as suffered by Awadhesh. In the case of Mrityunjay Kumar v. State of Sikkim70 It was held by the court that “It is the condition of the mind of the person confined, having regard to the circumstances that leads him to reasonably believe that he was not free to move and that he would be forthwith restrained if he attempted to do so”. Herein, Mr. Awadhesh was restricted to his room by the hospital guards and hence it is a clear case of wrongful confinement. 51. After recovering he asked the Doctor to relieve him, such was the condition of Awadhesh in the hospital that he felt relieved after the treatment, but to his surprise on the basis of a void contract the Hospital illegally asked for 15820 Rs from him. Mr. Awadhesh being a poor fellow could hardly repay but the Hospital Authorities even threatened him to pay and did not let him leave the hospital premises. Taking an account of the circumstances that Mr. Awadhesh was in, he had no option but to strike a deal with the doctor to sell his kidney for 75,000 Rs. This is a fair case of abusing the dominant position by the hospital authorities and compelling Awadhesh to sell his kidney leaving no other option available. In the case of Dr. Kapil Garg & Sh. Hari Singh v. State Along With Crl. M(M)71 it was observed by the court that “management being in much advantageous and dominant position appears to have forced the respondent to resign and thereby committed offences”. The doctor agreed to selling of kindey and just on the basis that Awadhesh could not pay for his treatment they removed his kidney and sold it for Rs 75,000. There are certain guidelines to be followed for the removal such a vital organ like kidney but Hospital for their greed of money also breached the provisions of the Organ Transplantation Act and behaved negligently in their conduct by removing the kidney. Moreover after removal of the kidney the hospital did not even pay Awadhesh the remaining amount. In the case of Billing v. Southee72 it was held that “even when a medical man received from his patient an amount in excess of his legitimate dues, he can be ordered to refund such excess.” By not paying the excess money to Mr. Awadhesh the hospital rubbed salt in the wounds. Moreover Mr. Awadhesh was discharged in severe pain, the very next day of the Kidney removal operation. These circumstances justify the greed of the hospital authorities and till what extent they could have gone to satisfy it.

70

2010 Cri LJ 44. 107 (2003) DLT 228. 72 21 LJ CH 472; (1852) 9 Hare, 534. 71


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 52. In State of Punjab v. Iqbal Singh73 a husband demanded money from his wife and on the fateful day she reacted by saying that death would be better. He responded by saying that he would feel relieved. The Apex Court held “that the husband willfully produced an atmosphere which forced the wife to do what she did and hence husband convicted for 7 years R.I.” Similarly in this case the Hospital created such atmosphere for Awadhesh which forced him to commit suicide and as per the facts of the abovementioned case, Awadhesh also said that he will commit suicide but the Hospital Staff did not pay any heed to it. 74 Hence there was reasonable opportunity for the Staff to know that Awadhesh might commit suicide but that did not stop their cruel and inhuman acts. 53. As per Section 306 of IPC accused shall have the intention to provoke, the deceased to commit suicide. In S.S. Cheena v Vijay Kumar Mahajan and Another75the court held that “there has to be a clear mens rea to commit the offence and that the act must have been intended to push the deceased into such position that he committed suicide”.”Abetment involves a mental process of instigating a person.”76 Undoubtedly presence of mens rea is the necessary concomitant of instigation.77 Herein the hospital attendants had the mens rea and wanted that Mr. Awadhesh dies of suicide so that they can blackmail the hospital authorities.78 Therefore, they created such pitiable conditions for Awadhesh by torturing him, by making fun of his poverty and by giving him sleeping pills. Henceforth it is a clear mens rea on part of the attendants and the act was to push Awadhesh to commit suicide. The attendants carried out this breach of duty during their employment henceforth the Hospital authorities are liable for offence under S.306.79 54. In Dammu Sreenu v State of A.P.80 the deceased was the husband who committed suicide because of the illicit relationship of his wife. Deceased stated that because of the insult & humiliation he did not like to live. The Supreme Court held that “there was definitely a proximity & nexus between the conduct of appellant & wife of deceased was liable as per S.

73

AIR 1991 SC 1532 : 1991 Cr LJ 1987. Palvinder Kaur v. The State of Punjab., 1953CriLJ154. 75 2010 (12) SCC 190; 2010 AIR SCW 4938. 76 M. Mohan v. State represented by the Deputy Superintendent of Police, (2011) 3 SCC 626 : 2011(3) SCALE 78; Amalendu Pal v. State of West Bengal, (2010) 1 SCC 707. 77 Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa Nagpur, 210 (31st ed.). 78 Fact Sheet ¶4. 79 Joseph alias Pappachan and Ors. v. Dr. George Moonjely and Anr., AIR 1994 Ker 289. 80 (2009) 14 SCC 249; AIR 2009 SC 2532; 2009 Cr LJ 3728. 74


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION 306 of IPC”. Mr. Awadhesh was already suffering from his disease and moreover the attendants made fun of his poverty and gave him sleeping pills81 which further led to insult and humiliation for him. Also in the case of Praveen Pradhan v. State of Uttaranchal82 Deceased an engineer suffered persistent harassment and humiliation & endured illegal demands made by the accused and upon non-fulfillment would be harassed by the superior officer. The court held that “such harassment coupled with the utterance of words to the effect, that, had there been any other person in his place, he would have certainly committed suicide” 55. The condition of accused was so deplorable that nothing was left with him. His family committed suicide, he was humiliated constantly, he had problems of his poverty and above all that, his vital organ had also been taken and not even given the amount which Awadhesh was entitled to. In Mohd. Hoshan v State of A.P.83 the wife was continuously taunted by the husband and his mother, The court said that this amounted to mental cruelty.84 “The continuous harassment, making physical assault, she was put to, by uttering intolerable words and the attending circumstances will attract S.306 of IPC.”85 Also in the case of Didigam Bikshapati v. State of A.P.86 the accused cheated and stole a property from the deceased because of which he was pressurized and finally committed suicide. “The court held the accused guilty of the offence as under S.306 of IPC.” Herein Mr. Awadhesh was continuously harassed, his kidney was taken and the remaining amount of money was not given to him hence it is a clear state of mental torture where he was put into a state wherein any normal human being would commit a suicide. It was the hospital and their negligence that put him in that sorrowful condition. 56. As per the paragraphs mentioned above, it is very evident that the Hospital attendants for their own greed to blackmail hospital authorities used Mr. Awadhesh and put him to such harassment and illegal confining that he was not even allowed to save his family from hunger or meet them after he got the news that they were dead. The hospital authorities also played an important role to put him in such circumstances from the outset i.e. by making him sign a 81

Fact Sheet ¶ 5. Praveen Pradhan v. State of Uttaranchal and Anr.,2012 Cri LJ 4925. 83 (2002) 7 SCC 414. 84 Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa Nagpur, 719 (31st ed.). 85 Rajagopalapeta Leelanandam v. State of andhra Pradesh, Cri. R.C. No. 690 of 2003. 86 (2008) 2 SCC 403; AIR 2008 SC 527; 2008 Cr LJ 7 24. 82


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION contract without reading out to him and then by not letting him go and restricting him in the hospital as he had to pay dues. The ultimate greed of the Hospital was such that in exchange of money the hospital illegally took a kidney by using their dominant position and then also did not return the amount which Awadhesh was entitled to. In the case of Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi)87 and in Ramesh Kumar v. State of Chhattisgarh88 The deceased was put under tremendous pressure to do something against his wish, the conduct of the appellant and his accomplices appeared such that the deceased was left with no other option except to end his life. Henceforth conviction justified as under S.306 of IPC. 57. Awadhesh being in such a state had no other option and it was the hospital attendants and hospital authorities that put Mr. Awadhesh in such circumstance where any prudent man would have committed suicide. Such cruel and hurtful conduct by the hospital would make any sensible man in a condition of sorrow wherein his mental condition cannot be stable. The deceased did not suffer with any mental disorder but due to the tenure suffered by him in the hospital, his mental condition was not stable and we cannot even expect that any person after going through such harassment will have an unwavering mind. Because of such insult and humiliation the deceased did not like to live and thus the Hospital Authorities are liable for the abetment of suicide as prescribed under S. 306 of IPC.

3.2 Police refrained from their duty which caused Mr. Awadhesh to commit suicide. 56. The petitioner humbly submits before this Hon’ble Court that under Section 154 of Cr.P.C in cases of cognizable offences it is the duty of the Police officer to write down the complaint and file a FIR which has to be read out to the informant and signed thereupon. 57. After the incidents that took place in the Hospital, as any prudent person would, Mr. Awadhesh went to the police station to lodge a complaint regarding the illegal conduct of the hospital authorities and its attendants. Mr. Awadhesh reported the entire incident to the police. The police authorities did not lodge the FIR. 58. FIR is the first step to “access to justice” for a victim, it uphold the rule of law, it facilitates swift investigation, it avoids manipulation in criminal cases in several ways. 89 In the

87

AIR 2010 SC 1446. AIR 2001 SC 3837. 89 Kelkar R.V., Criminal Procedure, Eastern Book Company 129 (6th ed.). 88


N.J. YASASWY MEMORIAL NATIONAL MOOT COURT COMPETITION landmark judgment of Lalita Kumari v. Govt of U.P.90 it has been categorically ruled that the provision of Section 154(1) Cr.P.C is mandatory and the officer concerned is duty bound to register the case on the basis of information disclosing commission of cognizable offence.” It can be said that it is the mandatory provision for the police officer to follow. It has also been clarified by the Supreme Court that since the word information in section 154 is not qualified reasonable it is the duty of the police to register the information under Section 154.91In Ganesh Dass v. State of Kerala92 and Palwinder Singh v State of Punjab93, the court held that “the police cannot refuse to register the complain. Nor can this power be usurped by the Magistrate”. 59. Henceforth by listening to the tragic incident of Mr. Awadhesh the police officer still refrained from filing a complaint and lodging FIR. The police breached their duty as prescribed by Sec 154(1) and hence with no option and no recourse left, Awadhesh had no option but to commit suicide. As held in the case of Chitresh Kumar Chopra v. State (Govt of NCT of Delhi)94 also read in Ramesh Kumar v. State of Chhattisgarh.95“The deceased was put under tremendous pressure to do something that he did not want to do Prima Facie, the conduct of the appellant and his accomplices appeared such that the deceased was left with no other option except to end his life. Henceforth conviction justified as under S.306 of IPC”.

90

AIR 2008 7 SCC. Kelkar R.V., Criminal Procedure, Eastern Book Company 128 (6th ed.) 92 1986 Cri LJ 612. 93 (2013) 5SCC 715. 94 Supra Note 87 at p. 17. 95 Supra Note 88 at p.17. 91



PRAYER Wherefore in the light of the facts presented, issues raised, arguments advanced and authorities cited, it is humbly requested that this Hon’ble Court may be pleased to adjudge and declare:

1) That the State violated the fundamental rights under Art. 21 of the Constitution and is requested to examine and improve the conditions of Government Hospitals and to provide with the compensation of amt. 90,820/- INR to meet the ends of justice.

2) That an order be passed by the Court to close down the Morx Flod Hospital and further provide with 1,12,10,820/- INR as compensation for their conduct.

3) That an order may be passed by the Court to look into the matter and order an unbiased investigation agency to conduct an investigation for the charge of S.306 of IPC.

And pass any such order, writ or direction as the Honorable Court deems fit and proper, for this the Appellants shall duty bound to pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED ______________________________ _____________________________ COUNSEL FOR THE PETITIONER

ix MEMORANDUM ON BEHALF OF THE PETITIONER


BIBLIOGRAPHY  STATUTES REFERRED 

The Constitution of India, 1950



Indian Penal Code, 1860



Code of Criminal Procedure, 1973



The Transplantation of Human Organn Act, 1994

 REPORTS REFERRED 

Medical Council of India, Code of Ethics Regulation, 2002, Available at: http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.as px.



223rd Law Commission Report, India (2009).



Omprakash V. Nandimath., Consent and Medical Treatment : The legal paradigm in India, Available at: (www.ncbi.nlm.nih.gov/pmc/Art.s/PMC2779959/ ).



WHO, Constitution of World Health Organization. Available At www.who.int/governance/eb/who_constitution_en.pdf .

 BOOKS REFERRED

 Arvind P Datar, Commentary on the Constitution of India, Lexis Nexis Butterworths Wadhwa Nagpur, 2nd Ed. 2010.

 DJ De, The Constitution of India, Asia Law House, 3rd Ed. 2008.  Durga Das Basu, Comments on the Constitution of India, Lexis Nexis, 8th Ed.  Dr. Jagdish Singh and Vishwa Bhushan, Medical Negligence and Compensation, Bharat Law Publications, 4th Ed. 2010.

 Ganguly, Law relating to Protection of Human Rights and Violation of Human Rights Problems, Dwivedi Law Agency, 1st Ed, 2010.

 K. I. Vibhute, PSA Pillai’s Criminal Law, Lexis Nexis Butterworths Wadhwa Nagpur, 10th Ed. 2012.

x MEMORANDUM ON BEHALF OF THE PETITIONER


 K.N. Chandrasekharan Pillai, R.V. Kelkar's Criminal Procedure, Eastern Book Company, 6th Ed. 2014.

 R.P. Kataria & S.K.P. Sriniwas, The Transplantation of Human Organs and Tissues Act, 1994, Orient Publishing Company, 1st Ed. 2014.

 Ratanlal and Dhirajlal, The Indian Penal Code, Wadhwa Nagpur, 31st Ed. 2007.  Vinod Nijhawan, Medical Science Helping the Process of Criminal Law, Vinod Publications(P) Ltd.,1st Ed., 2008.

 DATABASES REFERRED 

http://www.manupatra.com



http://www.westlawindia.com



https://www.scconline.in/default.aspk



https://www.jstor.com

xi MEMORANDUM ON BEHALF OF THE PETITIONER

Memo Petitioner

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