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PARTICIPANT CODE

Dr. ANNASAHEB G.D. BENDALE MEMORIAL 7TH NATIONAL MOOT COURT COMPETITION-2012

BEFORE THE HONBLE SUPREME COURT OF VINDHIA

IN THE MATTER OF

FLORENCE RIMA SENGUPTA

PETITIONER

VERSUS

UNION OF VINDHIA

RESPONDENT

MEMORIAL FOR THE RESPONDENT

Memorial For The respondent

TABLE OF CONTENTS

INDEX OF AUTHORITIES STATEMENT OF FACTS SUMMARY OF ARGUMENTS WRITTEN PLEADINGS PRAYER -

03 05 07 08 13

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INDEX OF AUTHORITIES
[DECISIONS OF MUNICIPAL COURTS]

Gian Kaur v. State of Punjab 1996 AIR 946 Aruna Ramchandra Shanbaug vs Union Of India & Ors AIR2011SC1290,
2011(59)BLJR561

Maruti Shripati Dubal vs State Of Maharashtra 1987 (1) BomCR 499, (1986) 88 BOMLR
589

P.Rathinam vs Union Of India 1994 AIR 1844, 1994 SCC (3) 394
Sudheswari v state of Assam 1981 Cri Lj 1005.

[TREATISES AND DIGESTS]

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M.P Jain, Indian constitutional law, 5th edition 2003, Wadhwa and co. H.M. Seervai, Critical Commentary on the Constitution of India, (Universal Law Publishing Co. Pvt. Ltd., 4th edn., 2004).

D.D Basu, Commentary on the Constitution of India, Wadhwa & Co., Nagpur, (4th edn., 2008)

M.P. Jain, Indian Constitutional Law, Wadhwa and Co., Nagpur, (5th edn., 2003). V.N Shukla, Constitution of India, Eastern Book Co., Lucknow, (10th edn., 2001). Aravind. P. Datar, Commentary on the Constitution of India., Wadhwa & Co., Nagpur, (Vol. 392)

Dr. Subhash C. Kashyap, Constitutional Law of India., (Universal Law Publishing Co. Pvt. Ltd.,)

[LEGAL DATABASE]
www.manupatra.com www.indiakanoon.org www.judis.nic.in www.westlaw.com

STATEMENT OF FACTS

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-IFlorence Rima Sengupta was a staff Nurse working in King George Memorial Hospital, Barel, Infoyork. On the evening of 27th November, 1973 she was brutally attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged that the Neurologist in the Hospital found that she had planters' extensor, which means damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. -II36 years have expired since the incident and now Florence Rima Sengupta is about 60 years of age. The parents of Florence Rima Sengupta are dead and other close relatives are not interested in her. It is the KGM Hospital staff, who are caring for her day and night for so many years . Now she is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Florence Rima Sengupta is in a persistent Vegetative State and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not

Memorial For The respondent

able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part -IIIJudged by any parameter, Florence Rima Sengupta cannot be said to be a living person and it is only on account of mashed food which is put into her mouth there is a facade of life which is totally devoid of any human element. There is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KGM Hospital, Infoyork like a dead animal, and this has been the position for the last 36 years. -IVIn these circumstances Mr. Premkumar Sinha who is a wellknown writer and social activist in the state , being a public spirited person has filed a petition under Article 32 of the Constitution before the Supreme Court of Vindhia on behalf of and in the name of Florence Rima Sengupta seeking a direction from the Supreme Court that Florence Rima Sengupta who was sixty years old and was in persistent vegetative state for the last 37 years, should be subjected to passive Euthanasia.

SUMMARY OF ARGUMENTS

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1. WHETHER THE PETITION CAN BE ALLOWED UNDER ARTICLE 32 OF THE CONSTITUTION?

2. WHETHER THERE IS A VIOLATION OF FUNDAMENTAL RIGHTS UNDER

ARTICLE 21 OF THE CONSTITUTION?

3. WHETHER EUTHANASIA AMOUNTS TO MURDER UNDER SECTION 300 OF

THE INDIAN PENAL CODE? 4. EUTHANASIA IS VIOLATIVE OF INDIAN MEDICAL COUNCIL ACT, 1956

5. WHETHER EUTHANASIA IS PERMISSIBLE UNDER THE PREVAILING SOCIAL

AND MORAL NORMS?

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PLEADINGS AND AUTHORITIES

1. THE PETITION IS NOT MAINTAINABLE UNDER ARTICLE 32 OF THE

CONSTITUTION Euthanasia is a long, smooth-sounding word, and it conceals its danger as long, smooth words do, but the danger is there, nevertheless Pearl S Buck In the present case there is no violation of fundamental rights and hence the case shall be dismissed by the Honble court at the earliest as the court has held Right to life does not include right to die1. If at all there exist any violation of fundamental right, then the case shall be instituted in the high court, as the apex court, in the case of Aruna Ramchandra Shanbaug vs Union Of India & Ors, has laid down that In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. The court in the abovementioned case devised a detailed procedure to be followed, where it is clearly provided that one should approach High court first and also includes seeking the opinion of distinguished experts among various other requirements. Thus court has provided various essential requirements and one cannot waive them all by taking a shortcut to Supreme Court. Thus the petition shall be dismissed.

2. THERE HAS BEEN NO VIOLATION OF FUNDAMENTAL RIGHTS UNDER

ARTICLE 21 OF THE CONSTITUTION

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Gian Kaur v. State of Punjab 1996 AIR 946

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All the clouds of doubt which had existed earlier about Art 21 due to the high court decision in Maruti Shripati Dubal vs State Of Maharashtra2 and Supreme Court decision in P.Rathinam vs Union Of India3,which held that a right to life included in it a corresponding right to die, was blown away by this Honble court with great clarity in Smt. Gian Kaur vs The State Of Punjab4. In the recent Constitution Bench decision of this Court (vide paragraphs 22 and 23) it was held that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Shri F.S. Nariman submitted in Gian Kaur v. State of Punjab5 that Article 21 cannot be construed to include within it the so called right to die since Article 21 guarantees protection of life and liberty and not its extinction Though relying on Aruna Ramchandra Shanbaug Vs. Union of India (UOI) and Ors6, one may say that the court has approved passive euthanasia, the court was of the view that it should be given after consulting with experts and also after procuring a directive from the high court. The court has even formulated a detailed procedure which should be followed in such cases till a new legislation is made. An important point to be noted is that the court gave permission to the hospital to decide about euthanasia and Pinky virani (social activist). The court stated clearly that passive euthanasia can be given only in cases of P.V.S and Coma. In the present case no scientific study has been conducted to assess her present state.

3. EUTHANASIA IS MURDER ACCORDING TO SECTION 300 OF THE INDIAN

PENAL CODE In India, euthanasia is undoubtedly illegal. Since in cases of euthanasia or mercy killing there is an indirect intention on the part of the doctor to kill the patient, such cases would fall squarely
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1987 (1) BomCR 499,(1986) 88 BOMLR 589 1994 AIR 1844, 1994 SCC (3) 394 4 1996 AIR 946, 1996 SCC (2) 648 5 ibid 6 AIR2011SC1290, 2011(59)BLJR561 Memorial For The respondent

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within Sec..300 of Indian Penal Code i.e. intention to cause death. It would be culpable homicide if the patient gives his consent. In the present case the patient cannot give his consent. Thus euthanasia is murder. In Sudheswari v state of Assam 7 a three year old child was killed by her mother and among the defences stated by her, one was that the little child had been done to death because she was suffering from illness badly and that the accused could not bear the trouble of looking after her and thus the court was asked to decide whether mercy killing was an exception to murder available in India. The court in case clearly held that euthanasia is not an exception to the offence of murder.Thus in a country like India it is very likely that people will abuse this law if all kinds of euthanasia becomes legal.

4. EUTHANASIA IS VIOLATIVE OF INDIAN MEDICAL COUNCIL ACT, 1956 I will give no deadly medicine to any one if asked, nor suggest any such counsel Herdodotus Indian Medical Council Act, 1956 also incidentally deals with the issue at hand. Under Section 20A read with Section 33(m) of the Act of 1956, the Medical Council of India may prescribe the standards of professional conduct and etiquette and a code of ethics for medical practitioners. Exercising these powers, the Medical Council of India has recently amended 27 the code of medical ethics for medical practitioners. Thereunder the act of euthanasia has been classified as unethical except in cases where the life support system is used only to continue the cardio-pulmonary actions of the body. Only in such cases, subject to the certification by the team of doctors, life support systems may be removed. If physicians and nurses become

1981 Cri Lj 1005. Memorial For The respondent

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associated with killing people then trust which is the basis of the healing contract will be eroded and slowly disintegrate. In the present case

5. EUTHANASIA IS NOT PERMISSIBLE UNDER THE PREVAILING SOCIAL

AND MORAL NORMS Euthanasia is a broad term for mercy killingtaking the life of a hopelessly ill or injured individual in order to end his or her suffering. Mercy killing represents a serious ethical dilemma. People do not always die well. Some afflictions cause people to suffer through extreme physical pain in their last days, and euthanasia may seem like a compassionate way of ending this pain. Other patients may request euthanasia to avoid the weakness and loss of mental faculties that some diseases cause, and many feel these wishes should be respected. But euthanasia also seems to contradict one of the most basic principles of morality, which is that killing is wrong. Viewed from a traditional Judeo-Christian point of view, euthanasia is murder and a blatant violation of the biblical commandment Thou shalt not kill. From a secular perspective, one of the principal purposes of law is to uphold the sanctity of human life. Euthanasia is so controversial because it pits the plight of suffering, dying individuals against religious beliefs, legal tradition, and, in the case of physician-assisted death, medical ethics.

Stephen Hawking on euthanasia: "The victim should have the right to end his life, if he wants. But I think it would be a great mistake. However bad life may seem, there is always something you can do, and succeed at. While there's life, there is hope."

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PRAYER AND CONCLUSION

Wherefore, in the light of facts of the case, issues raised, arguments advanced and authorities cited this Honble Court may be pleased to adjudge and declare that:

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Application of the petitioner under Art 32 is not maintainable. There is no violation of the Fundamental Rights enshrined under Part III of the Constitution of India and hence the petition may be dismissed.

And pass any other order in favour of the respondent that it may deem fit in the ends of justice, equity, and good conscience. All of which is respectfully submitted.

Place: Date:

S/d_________________ (Counsel for the respondent)

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