Respondent Chennai PDF

1ST B.S.
ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION
CSL 05
1ST B.S. ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION – 2019
BEFORE THE HON’BLE SUPREME COURT OF BRIHATHA
W.P. No. ……(2019)
PETITION FILED UNDER ARTICLE 131 OF THE CONSTITUTION OF

BRIHATHA
UNION OF BRITATHA, …………Petitioner No.1

HOME FOR HEALTH & HOPE AND …………Petitioner No.2
NAYADEEP …………Petitioner No.3
versus
STATE OF NEELAMBHARI ……………..Respondent
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF BRIHATHA AND HIS

COMPANION JUDGES OF THE SUPREME COURT OF BRIHATHA
MEMORIAL ON BEHALF OF RESPONDENT
Memorial for Respondent 1

1ST B.S. ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION
TABLE OF CONTENTS
S. No. Topic Page No.
1. Table of Abbreviations 03
2. Index of Authorities 04
3. Statement of Jurisdiction 06
4. Statement of Facts 08
5. Statement of Issues Raised 11
6. Summary of Arguments 12
7. Arguments Advanced 14
8. Prayer 36

LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reporter
Anr. Another
ed. Edition
Etc. Et cetera
Hon’ble Honourable
i.e. That is
M.P. Madhya Pradesh
Ors. Others
Prof. Professor
R&D Research and development
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Sec. Section
THOA Transplantation of Human Organs Act, 1994
U.P. Uttar Pradesh
v. Versus

INDEX OF AUTHORITIES
Legislations Referred:
• The Constitution of India, 1950.

• The Transplantation of Human Organs Act, 1994.
• The Indian Evidence Act, 1872.
Cases Referred:
• Ashok Kumar Pandey v. State of W.B.; (2004) 3 SCC 349

• Ashok Kumar Uttam Chand Shah v. Patel Mohammad Asmal Chanchad; AIR 1999
GUJ 108
• Ashutosh Gupta v. State of Rajasthan; (2002) 4 SCC 34 at 41: AIR 2002 SC 1533
• BALCO Employees Union v. Union of India; W.P. (C) No. 194 of 2001
• Bandhua Mukti Morcha v. Union of India; AIR 1984 SC 802
• Bhagwan Swarup v. State of Rajasthan; AIR 1991 SC 2062
• Chameli Singh v. State of U.P.; AIR 1996 SC 1051
• Chhetriya Pardushan Mukti Sangharash Samiti v. State of U.P; 1990 (4) SCC 449
• Commr., HRE, Madras v. Sri Lakshmindra; AIR 1954 SC 282,290
• Court on its Own Motion v. Government of NCT of Delhi; 2012 (192) DLT 2009
• Dattaraj Nathuji Thaware v. State of Maharashtra; 2005(1) SCC 590
• Dr. Laxman Balkrishna Joshi v. Dr. Trimbark Babu Godbole; AIR 1969 SC 128
• Francis Coralie v. U.T of Delhi; AIR 1981 SC 746,752
• Gurbakish Singh v. Gurdial Singh; (1927) 29 Bom LR 1392 PC
• Harding v. Prince; (1948) 1 All ER 283 (KBD)
• Inderjit Barua v. State of Assam; AIR 1983 Del 513
• Indira Sawhney v. Union of India; AIR 1993 SC 477
• Janata Dal v. H.S. Chowdhary; 1992) 4 SCC 305
• K. Thimmappa v. Chairman, Central Board of Directors; AIR 2001 SC 467
• Madamanchi Gouindayya v. Madamanchi Chimpiramma;(1996) 1 An WR 227
• P.M.A Metropolitan v. Moran Mar Marthoma; AIR 1995 SC 2001,2026
• P.U.D.R v. Union of India; AIR 1982 SC 1473
• Pashcim Banga Khet Mazdur Samiti v. State of West Bengal; AIR 1996 SC 2426

• Pravat Kumar Mukherjee v. Ruby General Hospital; (2005) CPJ 35 (NC)

• R&M Trust v. Koramamgala Residents Vigilance Group; 2005 (3) SCC 91
• In re Special Reference; No. 1 of 2012 (2012) 10 SCC 1 (77)
• S.P Anand v. H.D. Dewe Gowda; AIR 1997 SC 272
• S.P Gupta v. President of India & Ors.; AIR 1982 SC 149
• S.R Bommai v. Union of India; AIR 1994 SC 1918
• Samira Kohli v. Dr. Prabha Manchanda; (2008) CPJ 56 (SC)
• Sridhar Misra v. Jaichandra; AIR 1959 All 598
• State of Karnataka v. Union of India; AIR 1978 SC 68
• Valsamma Paul v. Cochin University; AIR 1996 SC 1011: (1996) 3 SCC 545
• Vincent v. Union of India; AIR 1987 SC 990
Books Referred:
• V.N. Shukla’s Constitution of India, Mahendra Pal Singh, ed. 13th, 2015.
• Indian Constitutional Law, M.P. Jain, ed. 7th, 2014.
• Public Interest Litigation, P.M. Bakshi, ed. 4th, 2017.
• Basic Documents on Human Rights, Brownlie & Goodwin-Gill, ed. 4th, 2002.
• Law Relating to Protection of Human Rights, Dr. S.K. Awasthi & R.P. Kataria,
Millennium Ed., 2002.
• Jurisprudence & Legal Theory, V.D. Mahajan, ed. 5th, Reprint, 2017.
• Law & Medicine, Dr. Nandita Adhikari, ed. 4th, 2015.
• Medicine And Law, K. Kannan, ed. 1st, 2014.
• Law & Medicine, Dr. Lily Srivastava, ed. 2nd, 2013.
• The Law of Evidence, Ratanlal & Dhirajlal, ed. 23rd Enlarged, 2010.
• Law of Torts, R.K. Bangia, ed. 24th, 2017.
• Indian Penal Code, K.D. Gaur, ed. 6th, ed. 6th, 2018.
Websites Referred:
• www.scconline.com
• www.manupatrafast.com

STATEMENT OF JURISDICTION
The Respondent humbly submits that the Petitioner has submitted to the jurisdiction of this
Hon’ble court under Art. 131 of the Constitution of Brihatha1 read along with Art. 139A.
Art. 131 – Original Jurisdiction of the Supreme Court
Original jurisdiction of the Supreme Court Subject to the provisions of this Constitution, the
Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any
dispute:
(a) between the Government of India and one or more States; or

(b) between the Government of India and any State or States on one side and one or more
other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question
(whether of law or fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty,
agreement, covenant, engagements, and or other similar instrument which, having been
entered into or executed before the commencement of this Constitution, continues in
operation after such commencement, or which provides that the said jurisdiction shall
not extend to such a dispute
Art. 139A – Transfer of Certain Cases
(1) Where cases involving the same or substantially the same questions of law are pending
before the Supreme Court and one or more High Courts or before two or more High
Courts and the Supreme Court is satisfied on its own motion or an application made
by the Attorney General of India or by a party to any such case that such questions are
substantial questions of general importance, the Supreme Court may withdraw the case
or cases pending before the High Court or the High Courts and dispose of all the cases
itself: Provided that the Supreme Court may after determining the said questions of
law return any case so withdrawn together with a copy of its judgment on such
1
In pari materia with Art. 131 and Art. 139A of the Constitution of India.

questions to the High Court from which the case has been withdrawn, and the High
Court shall on receipt thereof, proceed to dispose of the case in conformity with such
judgment
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice,
transfer any case, appeal or other proceedings pending before any High Court to any
other High Court.

STATEMENT OF FACTS
BACKGDROUND OF THE FACTS
• Neelambhari is a state in the Union of Brihatha blessed with top level literacy rate and
progressive living conditions. In addition to this, Neelambhari is known for its health
sector and the state offers the most advanced medical facility among the entire country.
This became a reason for substantial increase in the tourism of this State.
• On one hand there was an escalating need of organs for therapeutic purposes. While,
on the other hand, there was a poor population of organ donors in the health sector of
the Union of Brihatha. Thus, Neelambhari, a sought after destination for organ
transplantation surgeries, faced a really difficult.
• The Opposition parties set the fire for a big controversy and all main stream medias
started covering this news and coloured it as a public health issue. Therefore,
Mr.Chinmay Jha, Health Minister, Neelambhari announced the enactment of a new
legislation to curb the ongoing hurdles and promulgated The Neelambhari State
Donation, Transplantation and Preservation of Organs and Tissues Act, 2019.
PETITION FILED BY HOME FOR HEALTH & HOPE THROUGH DR. ANNU
• Dr. Annu Kapoor a.k.a Annu, a well-known personality for his works in ethical
medical practices, a crusader of an NGO called ‘3’ H (Home for Health & Hope) and
also the founding director of the Erena Hospital a place where ethics and expertise
unites, personally received many calls from unknown persons communicating their
enthusiasm in donating organs for getting payment. Many of them addressed
themselves as agents and even offered tempting deals.
• On a personal study conducted by Dr. Annu, he understood a shocking detail that after
the creation and circulation of the Act several unauthorised and illegal incidents of
organ trade have happened in Neelambhari.
• He believed that the newly enacted Act and its flexible provisions are the root cause
for all the illegal activities that happened within this short span of time in the form of
organ trade.
• On this matter, Dr. Annu representing ‘3’H led a petition in the High Court of
Neelambhari challenging the validity of the Act. Along with Dr. Annu several other

NGO’s also led separate petitions challenging the Act before the High Court of
Neelambhari.
THE ADHISANGHS COMMUNITY
• Adhisangh is a religious minority exist in Adhibhoomi, a province in Neelambhari.

Agriculture is a way for these Adhisangs to earn their bread and livelihood. The
Adhisanghs are believers of ‘Aham’ principle enshrined by Lord Anay, believed to be
the founder of the Bhramasmi Religion, which means the “god exist in ourselves” and
“Human body is a sanctum where the god lives”.
• After the death of every native of Adhibhoomi they conduct a ritual to pay their respect
to the body and they perform a special ritualistic cremation, according to them the body
of the deceased is a temple once god lived and it is the duty of the living ones to send
the body back to the supreme abode of god.
• The Adhisanghs neither believe nor enthusiastic in scientific advancements, modern
medicine and their application. Instead, they take the recourse of ‘Ahamveda’
according to which nature will cure every disease of man and all living creatures.
• The method of working of Ahamveda is through the application of medicinal plants
and its extracts. The Ahamveda is a globally flamboyant technique and it got many
admirers around the world.
PETITION FILED BY NAYADEEP
• ‘Nayadeep’ is an organisation that works for the social benefits of the indigenous
communities and for the protection of their religious believes.
• Sami, a young man also a member of this community while working in the fields met
with an accident and his head got severely injured.
• The treatments prescribed under Ahamveda didn’t succeed and some educated youths
among the Adhisanghs despite the strong condemnation of the entire Adhisangh clan
brought Sami to the Medical College of Sundharam, a district in Neelambhari.
Unfortunately, Sami was brought dead to the hospital and the attended doctors were
also confirmed the death of Sami.
• On the same day a five year old girl child was also admitted in the same hospital with
an urgent need of a kidney transplantation.

• Doctors found Sami ’s kidney to be a match and suggested for a transplantation and
communicated the same to the Adhisangh youths they permitted for the transplantation
and gave consent. Transplantation surgery was performed and it went successfully well
and the girl child was recovered.
• After knowing this organ donation, the Adhisangh Community people created a huge
issue and agitated widely and created a law and order situation in many parts of
Neelambhari.
• Nayadeep led a petition challenging the Act as a bad law that frustrates the religious
freedom of the religious minorities and the manner the State handled the Organ
transplantation of Sami.
MATTER BEFORE THE HON’BLE SUPREME COURT OF BRIHATHA
• For promulgating a legislation in contravention to the existing law of the land and for
transgressing the power enshrined by the Constitution, the Union of Brihatha
challenged the constitutional validity of the Act promulgated by the State of
Neelambhari before the Supreme Court of Brihatha.
• The Hon’ble Bench of the Supreme Court after considering the fact that several other
related petitions are also led in the High Court of Neelambhari, clubbed the whole
matter together.
• Thus, the matter is pending before the Hon’ble Bench for disposal.

STATEMENT OF ISSUES RAISED
ISSUE 1: WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT?
ISSUE 2: WHETHER THE ACT IN QUESTION IS IN VIOLATION OF

TRANSPLANTATION OF HUMAN ORGANS ACT, 1994?
ISSUE 3: WHETHER THE ACT IS ULTRA-VIRUS TO THE PROVISIONS OF THE

CONSTITUTION?
ISSUE 4: WHETHER THE ACT OF ORGAN TRANSPLANTATION BY THE

DOCTOR WITHOUT PROPER CONSENT IS JUSTIFIED?

SUMMARY OF ARGUMENTS

SUPREME COURT?
Public interest litigation is a highly effective weapon in the armoury of law for reaching social
justice to the common man. It is a unique phenomenon in the Brihathan Constitutional
Jurisprudence that has no parallel in the world and has acquired a big significance in the modern
legal regime. It is contented that it is the constitutional power enshrined upon the State to pass
laws with respect to the State List and the State of Neelambhari has not transgressed the powers
enshrined upon it by the constitution and therefore the Union of Brihatha should not cast a
shadow over the functions of the State and drag the State to the court of law for acting upon
the duties provided in the constitution. Thus, the petition is not maintainable and should be
dismissed with costs.
ISSUE 2: WHTHER THE ACT IN QUESTION IS IN VIOLATION OF

It is an established fact that the act is challenged as a bad law on the grounds of:
i. Flexible provisions which facilitate illegal organ trade.

ii. Violation of religious freedom of religious minorities.
iii. Legislation is in contravention to the existing law of the land.
It is hereby contended that the Act promulgated by the State is an attempt made by the State of
Neelambhari to curb the ongoing hurdles of organ donations, to cure the rigidity of the existing
laws regarding organ transplantation and to create more awareness among the people about the
need for organ donation. It is also contended that the Act promulgated by the State is an attempt
made by the State of Neelambhari to curb the ongoing hurdles of organ donations, to cure the
rigidity of the existing laws regarding organ transplantation and to create more awareness
among the people about the need for organ donation. The accusation made by the Petitioner
has no grounds and should be dismissed at the threshold itself. The Petitioner’s NGO ‘3’H(
Home for Health & Hope) connotes a hope for publicity and private interest rather than serving
the greater good of public interest.


CONSTITUTION?
The Act in question guarantees to individuals and incorporates religious freedom. It deals with
an individual as a citizen irrespective of his faith and religious belief. It does not promote nor
prefer any specific religion. The Act in question promulgated by the state of Neelambhari is of
a secular nature and it does not extend patronage to any one religion but maintains neutrality
on that part by allowing anyone and everyone to be a donor.
It is hereby contended that the Act in question in no possible scenario bars any individual from
practicing or propagating their religion nor does it bar the enjoyment of any religious right
enumerated under Article 25 of the Constitution of Brihatha. The provisions of the Act in
question are completely secular in nature and are equally applicable to all citizens. It is further
contended that there is no provision in the Act casts a fundamental duty on the citizens to
perform organ donation or forces any person from any community to act as a donor. All
provisions of this act are attracted to only those citizens who voluntarily come up for the act of
Organ donation and thus the Act does not violate Article 25 of the Constitution of Brihatha.

DOCTOR WITHOUT PROPER CONSENT IS JUSTIFIED?
It is established that Sami was brought to the hospital as a brain death case and the same was
confirmed by the attending doctors. That the 5 year old girl was in urgent need of a kidney
transplant. That there has been no mention of any near relative or family member of Sami in
the entire factual matrix. That consent for transplantation was obtained from the youths who
brought Sami to the hospital. From the observations made by the courts it is now clear that the
concept of waiting for consent in emergency cases is waived off. The sole reason for this is
that saving the life of a person is more important than waiting for someone to step in and allow
them to do the same. It is rightly said that to understand a religion one should not follow the
teachings of its followers but one should follow the scriptures. The scriptures herein have
shown the right path and the state thereby contends that the agitations caused are only because
of misinterpretation of scriptures and do not have any religious ground.

ARGUMENTS ADVANCED

SUPREME COURT?
1.1. Whether the Petitioner No. 2 & 3 are having a Locus Standi?
A. Public interest litigation is a highly effective weapon in the armoury of law for reaching
social justice to the common man. It is a unique phenomenon in the Brihathan
Constitutional Jurisprudence that has no parallel in the world and has acquired a big
significance in the modern legal regime.
B. Former Chief Justice A.S. Anand cautioned the over use of PIL and emphasized “Care has
to be taken to see that PIL essentially remains public interest litigation and is not allowed
to degenerate into becoming political interest litigation or private inquisitiveness
litigation”
C. It is contended that Dr Annu is not a public spirited individual and that the Petition filed by
him is nothing but a publicity stunt.
D. The petition filed by Dr. Annu is filed by him as a representative of his NGO – ’3’ H (Home
for Health & Hope) whereas all the research which is claimed by him to be undertaken in
this regard has been his solo crusade. Any information that he claims to have received, was
received by him in his personal capacity as a Doctor and not as a representative of his NGO.
So the very intention of the Petitioner to bring his NGO into the picture is to draw attention
towards his NGO so as to bring it into the domain of public notice.
E. The most significant point to notice herein is that why has the Petitioner brought about the
petition in the name of his NGO and not in private capacity even though there is no prima
facie reason for the same.
F. Another matter that seeks attention is the fact that as Dr. Annu claims to have received
several phone calls by unknown people showing enthusiasm towards donating organs for
payment of money and also that he received calls from people addressing themselves as
agents of the same, he has failed to inform the police or any appropriate authority of the
same, an act, which could have ended up in those people getting arrested and the claimed
black market of organ trade being exposed. Even the residents of Neelambhari never
complained to the police or any concerned authority about the same.

G. Instead Dr. Annu decided to go against the basic instinct of reporting such happenings and
went on a personal mission of doing research and filing a petition in the High Court of
Neelambhari which would now attract attention of the media and bring fame and publicity
to both himself and his organisation.
H. The intention of Dr. Annu in filing of this petition is mala fide in nature and it is not less
to say that he has kept his interests above the interests of law enforcement by not revealing
any information to the concerned Police Department.
I. In the case of Dattaraj Nathuji Thaware v. State of Maharashtra,2 Hon'ble Supreme
Court was pleased to observe as under:
“12. The attractive brand name of public interest litigation should not be used for
suspicious products of mischief. It should be aimed at redressal of genuine public wrong
or public injury and not publicity oriented. As indicated above, Court must be careful to
see that a body of persons or member of public, who approaches the court is acting bona
fide and not for personal gain or private motive or political motivation or other oblique
considerations. The Court must not allow its process to be abused for oblique
considerations by masked phantoms who monitor at times from behind. Often they are
actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies
deserve to be thrown out by rejection at the threshold, and in appropriate cases with
exemplary costs."
J. In Janata Dal v. H.S. Chowdhary,3 this Court opined:
“It is thus clear that only a person acting bona fide and having sufficient interest in the
proceeding of PIL will alone have a locus standi and can approach the court to wipe out
the tears of poor and needy, suffering from violation of their fundamental rights, but not a
person for personal gain or private profit or political motive or any oblique consideration.
Similarly, a vexatious petition under the colour of PIL brought before the court for
vindicating any personal grievance, deserves rejection at the threshold."
K. It is abundantly clear that the petition filed is nothing but an act for personal gain, private
profit and other oblique considerations. Abuse of PIL, misuse of this strategy, hijacking of
this versatile process by enemies of the poor and even trivialization of public interest
litigation bringing it into contempt are now on the cards, gambling with the court’s mood.
2
2005(1) SCC 590
3
(1992) 4 SCC 305

L. It is claimed by the Petitioner that he has conducted a personal study about illegal organ
transplants post The Neelambhari State Donation, Transplantation and Preservation of
Organs and Tissues Act, 2019 was promulgated and it came into his notice that the flexible
provisions of this Act has been the sole reason for the rising number of illegal organ trade
going on in the State.
M. It is contented that the data is just a secondary source of data and cannot be relied upon.
Further the Petitioner has not submitted any evidence of the study conducted by him in his
personal capacity and he is put to strict proof thereof.
N. In the case of Madamanchi Gouindayya v. Madamanchi Chimpiramma,4 the court
observed:
“When the matter is within the knowledge of the Plaintiff, he is to prove the same.”
O. It is hereby contended that the fact of illegal organ trade is specially within the knowledge
of the Petitioner and thereby he is under bounden duty to provide substantial evidence to
prove the fact that the personal study the petitioner has claimed to undertake is true in
nature and that such evidence exists in the first place itself.
P. The Hon’ble Supreme Court in the case of Ashok Kumar Pandey v. State of W.B.,5 was
pleased to hold as under:
“The Court has to be satisfied about
(a) the credentials of the applicant;
(b) the prima facie correctness or nature of information given by him;
(c) the information being not vague and indefinite.
The information should show gravity and seriousness involved. Court has to strike balance
between two conflicting interests; (i) nobody should be allowed to indulge in wild and
reckless allegations and (ii) avoidance of public mischief and to avoid mischievous
petitions seeking to assail, for oblique motives, justifiable executive actions. In such case,
however, the Court cannot afford to be liberal. It has to be extremely careful to see that
under the guise of redressing a public grievance, it does not encroach upon the sphere
reserved by the Constitution to the Executive and the Legislature. The Court has to act
ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers
impersonating as public-spirited holy men. They masquerade as crusaders of justice.”
Q. In the case of S.P. Anand v. H.D. Dewe Gowda,6 the court was pleased to state:
4
(1996) 1 An WR 227
5
(2004) 3 SCC 349
6
AIR 1997 SC 272

“He must remember that a person seeking to despotize a public cause, he owes it to the
public as well as to the court that he does not rush to court without undertaking proper
research even if he is qualified or competent to raise the issue. It must be remembered that
a good cause can be lost if petitions are filed on half-baked information without proper
research.”
The court further stated:
“No person has the right to waiver of the locus standi rule and the court should permit it
only when it is satisfied that the carriage of proceedings is in the hand of a person who is
genuinely concerned in public interest and is not moved by other extraneous
considerations.”
R. It is, therefore, contented that the Petition has no roots and is baseless in nature. There is
no real seriousness involved in the issue but only an attempt is made to draw public
attention by claiming to possess vague and relevant evidence whereas it is just a bunch of
lies packed together by imposters of public spirited individuals to waste the time of the
court.
S. It is established that the state of Neelambhari is blessed with top level literacy rate and
progressive living conditions and that Adhisangh community exists in Adhibhoomi which
is a province in the state of Neelambhari. It is further established that on the organ donation
of Sami, the Adhisangh Community had created a law and order situation in the State of
Neelambhari.
T. It is further established that Nayadeep is an organisation which works for the social benefits
of the indigenous communities and for protection of their religious beliefs.
U. In the case of P.U.D.R v. UOI7, Justice Bhagwati elaborated the nature and scope of public
interest litigation as follows:
“ We wish to point out with all emphasis at our command that PIL which is strategic arm
of the legal aid movement and which is intended to bring justice within the reach of poor
masses, who constitute the low visibility area of humanity is a completely different kind of
litigation which is intended to promote and vindicate public interest which demands that
violations of legal rights of large number of people who are poor, ignorant or in socially
or economically disadvantaged positions, should not go unnoticed and unredresed. The
court should extend its arms to provide social justice to the vulnerable sections of the
society.”
7
AIR 1982 SC 1473

V. In the case of S.P Anand v. H.D. Dewe Gowda,8 the court was pleased to state:
“Public interest litigation is a tool which is to be used for the enforcement of the basic
human rights of weaker sections of the community who are downtrodden, ignorant,
illiterates and whose fundamental and statutory rights have been violated. It must not be
frivolous litigations by persons having vested interests.”
W. It is contended that the Adhisangh Community is neither a poor, ignorant or socially and
economically disadvantaged community. Neither are they illiterate or part of the weaker
and vulnerable sections of the society. This can be ascertained by the fact that the
community stood up and raised their voice as one when the organ donation happened.
X. Therefore it is contended that there was no reason for the Petitioner No. 3 to file a PIL
seeking out their interests whereas they were quite capable to do the same in time.
Y. It has been reiterated in the case of BALCO Employees Union v. UOI,9 where the court
was pleased to state:
“PIL is intended to vindicate public interest where fundamental and other rights of people
who are poor, ignorant or in socially or economically disadvantaged positions and are
unable to seek legal redress were required to be espoused. It is to seek justice for the poor
and weaker sections of the society who are not in a position to protect their own interests.”
Z. The Adhisandh community was in a position of seeking justice and protecting their own
interests. They had the opportunity of being heard and fight for their community. The only
reason for which the Petitioner No. 3 swooped in to save the day was to grab public
attention.
AA. In R&M Trust v. Koramamgala Residents Vigilance Group,10 the Supreme Court,
at Paragraphs 23 and 24, observed as follows:
“Next question is whether such Public Interest Litigation should at all be entertained &
laches thereon. This sacrosanct jurisdiction of Public Interest Litigation should be invoked
very sparingly and in favour of vigilant litigant and not for the persons who invoke this
jurisdiction for the sake of publicity or for the purpose of serving their private ends.”
BB. It is contended that the situation of disruptions in law and order in the state was public
knowledge and media was with no reason to doubt on its toes following the same. This was
the perfect opportunity which came across Petitioner No.3 and it wasted no time to turn
8
AIR 1997 SC 272
9
W.P. (C) No. 194 of 2001
10
2005 (3) SCC 91

winds in its favour by emerging as the saviour for minority interests and filing the petition
which brought about publicity and fame to the organisation.
CC. Perhaps being aware that there may be a tendency that public interest litigation may
become “Publicity Interest Litigation”, in the case of S.P. Gupta v. President of India &
Ors.,11 Justice Bhagwati was pleased to state:
“ But we must hasten to make it clear that the individuals who move to court for judicial
redress in cases of this kind must be acting bona fide with a view to vindicating the cause
of justice and if he is acting for personal gain or private profit or other oblique
consideration, the court should allow itself to be activised at the instance of such person
and reject the application at the threshold.”
DD. In Chhetriya Pardushan Mukti Sangharash Samiti v. State of U.P,12 Sabyasachi
Mukharji, C.J. observed:
"While it is the duty of this Court to enforce fundamental rights, it is also the duty of this
Court to ensure that this weapon under Article 226 should not be misused or permitted to
be misused”.
EE. It is thereby contented that the actions of the organisation Nayadeep are nothing but an
attempt to wear the hero cape and get the media to their doorstep. It has no consideration
for the Adhisangh Community as such and is motivated for personal interests only.
Therefore it is sincerely requested to this Hon’ble court to disallow the misuse of the power
of PIL enshrined under Article 226 and dismiss the petition.
FF. It is established that the petition filed by Petitioner No.3 also questions the manner in which
the state handled the organ transplantation of Sami, and thereby will also seek a remedy for
the same. This particular scenario is based on private interest as the organ transplantation
of Sami does not have a direct effect on the public at large and thus no legal right of the
public is at risk or is violated. Therefore it is contented that it lies outside the scope of
Public Interest Litigation.
GG. In the case of Bandhua Mukti Morcha v. UOI,13 Justice Shyamal Kumar observed:
“It is quite obvious, therefore, that in a PIL there is no question of one party claiming or
asking for relief against the other and the Court deciding between them. In such a case the
concept of cause of action evolved is in the background of private laws. The only question
11
AIR 1982 SC 149
12
1990 (4) SCC 449
13
AIR 1984 SC 802

that can arise is whether the prayers in the petition, if granted, will ensure constitutional
or legal rights of the public at large.”
It is hereby contended that the petition filed raises an issue of the manner in which the State
handled the organ transplantation of Sami which is not a matter subject to public interest
but of private interest and thus coming under the ambit of Private laws. Thus the petition
filed is invalid and an attempt to camouflage private interests within public interests and
thus should be dismissed by the Court without any further discussions on the same.
HH. Thus, the Petition must be dismissed with costs.
1.2. Whether the Petition filed by Petitioner No. 1 is maintainable?
II. It is established that the Union of Brihatha is challenging the constitutional validity of the
State promulgated Act under Article 131 of the Constitution of Brihatha.
JJ. Article 246(3) of the Constitution of Brihatha reads:
Subject to clause (1) and (2), the Legislature of any state has exclusive power to make laws
for such state or any part thereof with respect to any of the matters enumerated in List II in
the Seventh Schedule ( in this Constitution referred to as the “State List”).
KK. It is contended that Entry 6 of List II, i.e. the State List, in the Seventh Schedule is
Public Health and Sanitation; hospitals and dispensaries. Article 246(3) gives authority to
the state to make laws governing Public Health. Therefore the Act promulgated by the State
of Neelambhari is in accordance with the powers enshrined upon it by the Constitution. It
is further contended that the State of Neelambhari has never passed a resolution to adopted
the said Central legislation, i.e. THOA, 1994.
LL. In the case of State of Karnataka v. UOI,14 Justice Chandrachud observed:
“The object of Article 131 is to provide a high powered machinery for ensuring that the
Central Government and the State Governments act within the respective spheres of their
authority and do not trespass upon constitutional functions or powers of one another.”
MM. It is contented that it is the constitutional power enshrined upon the State to pass laws
with respect to the State List and the State of Neelambhari has not transgressed the powers
enshrined upon it by the constitution and therefore the Union of Brihatha should not cast a
shadow over the functions of the State and drag the State to the court of law for acting upon
14
AIR 1978 SC 68

the duties provided in the constitution. Thus, the petition is not maintainable and should be
dismissed.
ISSUE 2: WHETHER THE ACT IN QUESTION IS IN VIOLATION OF

A. It is an established fact that the act is challenged as a bad law on the grounds of:
iv. Flexible provisions which facilitate illegal organ trade.
v. Violation of religious freedom of religious minorities.
vi. Legislation is in contravention to the existing law of the land.
B. It is hereby contended that the Act promulgated by the State is an attempt made by the State
of Neelambhari to curb the ongoing hurdles of organ donations, to cure the rigidity of the
existing laws regarding organ transplantation and to create more awareness among the
people about the need for organ donation.
C. It is hereby contended that the Act promulgated by the State is an attempt made by the State
of Neelambhari to curb the ongoing hurdles of organ donations, to cure the rigidity of the
existing laws regarding organ transplantation and to create more awareness among the
people about the need for organ donation.
D. Under the State Act in question: Section 2 (f) of the Act :
“Donor” means any person, not less than eighteen years of age, who is a citizen of the
Union of Brihatha irrespective of religion, caste or any sect, or any other nation except the
alien enemy.
Section 2 (j) of the Act :
“donation” means providing any human organs while living or after death to a recipient
out of love and compassion or with payment for therapeutic purposes.
E. Definition of Donor under THOA,1994: Section 2 (f) of the Act:
“Donor” means any person, not less than eighteen years of age, who voluntarily authorizes
the removal of any of his human organs for therapeutic purposes.
F. Section 9 (3) of THOA,1994 reads:
If any donor authorizes the removal of any of his human organs before his death under
sub-section (1) of section 3 for transplantation into the body of such recipient, not being a
near relative, as is specified by the donor by reason of affection or attachment towards the
recipient or for any other special reasons, such human organ shall not be removed and
transplanted without the prior approval of the Authorisation Committee.

It is therefore contended that both the statutes allow the donation of organs to any suitable
recipient out of love and affection or any special reasons.
G. Both these statues only allow people above the age of 18 years to make a donation of organs
without any discrimination to any religion, caste or sect voluntarily. Both the statutes do
not permit forced organ donations.
H. Moreover the Act in question has expanded the scope of the definition of donor. it is an
established fact that the State of Neelambhari invites global attention due to excellent
expertise of the doctors and the affordable services provided by them. Visitors from
numerous countries visit the state for their health needs.
I. It is contended that in such a scenario, when the State is able to provide unparalleled health
services at cheap rates, allowing foreign donors to donate organs to their loved ones or with
payment for therapeutic purposes is a positive step taken by the state to promote the healthy
practice of organ donation not only by people of this country but other nations also.
J. It is an established fact that the State of Neelambhari is sought after destination for organ
transplantation and due to poor population of organ donors it is facing lots of difficulties in
saving lives of people who die due to organ failures.
K. It is contented that the clause which provides the donor with payment for therapeutic
purposes in case of organ donation allows the state to increase the number of organ donors
in the state so as to help in-numerous number of people who are dying of organ failures in
the state.
L. According to Section 19 of THOA, 1994: Punishment for commercial dealings in human
organs
Whoever – (a) makes or received any payment for the supply of, or for an offer to supply,
any human organ; (b) seeks to find person willing to supply for payment any human organ;
(c) offers to supply any human organ for payment; (d) initiates or negotiates any
arrangement involving the making of any payment for the supply of, or for an offer to
supply, any human organ;
shall be punishable with imprisonment for a term which shall not be less than two years
but which may extend to seven years and shall be liable to fine which shall not be less than
ten thousand rupees but may extend to twenty thousand rupees
M. It is to be noted that punishment is only for any kind of commercial dealings wherein a
payment made for the supply or an offer to supply any human organ is taken into
consideration. But the Act in question only allows payment in case of therapeutic purposes
only.

N. Therapeutic purposes is defined as follows in THOA,1994: Section 2 (o) of the Act

“therapeutic purposes” means systematic treatment of any disease or the measures to
improve health according to any particular method or modality.”
In medical terminology, there are two kinds of donors in this reference as defined by United
Network for Organ Sharing:
i. Therapeutic organ donor- to describe an individual who has an organ removed,
as a component of their treatment for a medical problem, and their removed
organ is suitable for transplant into a transplant candidate.
ii. Domino Donors- one type of therapeutic organ donor who have their organs
removed so that they can receive a replacement organ.
O. It is contended that both a therapeutic donor and a domino donor may receive a payment
for therapeutic purposes as it is not a payment made for supply of human organs but it is
payment made for treatment of their own medical problems to improve their health and
treat their diseases. Therefore making a claim that the payment for therapeutic purposes is
a punishable offence and identical to payment for supply of human organs is beyond
tolerance and has no substantial grounds in support of the same.
P. Guiding Principle 5 of the WHO Guiding Principles on Human Cells, Tissue and Organ
Transplantation requires that:
“The prohibition on sale or purchase of cells, tissues and organs does not preclude
reimbursing reasonable and verifiable expenses incurred by the donor, including loss of
income, or paying the costs of recovering, processing, preserving and supplying human
cells, tissues or organs for transplantation.”
Q. According to the commentary of Guiding Principle 5 provided in the WHO Guiding
Principles, (as endorsed by the 63rd World Health Assembly in 2010, by resolution
WHA63.22):
“payment for cells, tissues and organs is likely to take unfair advantage of the poorest and
most vulnerable groups, undermines altruistic donation, and leads to profiteering and
human trafficking. Such payment conveys the idea that some persons lack dignity, that they
are mere objects to be used by others. [...]
This Principle permits compensation for the costs of making donations (including medical
expenses and lost earnings for live donors), lest they operate as a disincentive to donation.
The need to cover legitimate costs of procurement and of ensuring the safety, quality and
efficacy of human cell and tissue products and organs for transplantation.”

R. It is contended that the word payment in Sec.2(j) has been used for covering legitimate
costs of procurement and of ensuring the safety, quality and efficacy of human cell and
tissue products and organs for transplantation.
S. Sec. 3 (1A) of the Act in question reads:
For the purpose of removal, storage or transplantation of such human organs or tissues or
both, as may be prescribed, it shall be the duty of the registered medical practitioner
working in a hospital, in consultation with transplant co-ordinator, if such transplant
coordinator is available.
T. Section 3 (4) of THOA,1994 reads:
The authority given under sub-section (1) or sub-section (2) or, as the case may be, sub-
section (3) shall be sufficient warrant for the removal, for therapeutic purposes, of the
human organ; but no such removal shall be made by any person other than the registered
medical practitioner.
U. It is thereby contented that both the statutes call for a registered medical practitioner for the
removal of any organ as prescribed in both the statues and that there is no contravention
thereof in this regard.
V. Section 3 (1A) and 3 (2) of the Act in question and Section 3 (1A) and 3 (2) of
THOA(Amendment) Act 2011 are identical in nature. It is contended that both these
statutes have similar nature in the provisions as to obtaining consent for removal of organs.
The consent and interests of the prospective donor or the near relatives is paramount.
W. It is therefore contended that any objections made as to the Act in question being in
contravention to the THOA, 1994 are frivolous in nature and lay on improper grounds. The
same should not be taken into consideration before this Hon’ble Court of law. It is further
contended that any claim made in favour of illegal organ trade being facilitated by the
provisions of this Act in question are false in nature as the Act in question is at par with
THOA,1994 and imposes the same duties and liabilities on all the parties involved in organ
donation. No provision herein is in support of facilitating organ trade within the State and
any evidence filed in this regard is false and an attempt to misguide the court of law.
2.1. Whether Dr. Annu Kapoor is criminally liable?
X. It is already established by the State that the provisions of the Act in question are not
flexible in nature and the proper interpretation of the same has already been provided with.
No provisions under the Act is supporting or facilitating illegal organ trade and any claims
made thereof are false.

Y. Sec. 62 of the Brihathan Evidence Act15, 1872 reads:

Primary Evidence – Primary evidence means the document itself produced for the
inspection of the court.
The petitioner has failed to provide any primary evidence on record to prove his findings.
Z. Sec. 103 of the Brihathan Evidence Act16, 1872 reads:
Burden of proof as to particular fact — The burden of proof as to any particular fact lies
on that person who wishes the Court to believe in its existence, unless it is provided by any
law that the proof of that fact shall lie on any particular person.
AA. Sec. 106 of the Brihathan Evidence Act, 187217 reads:
Burden of proving fact especially within knowledge.—When any fact is especially within
the knowledge of any person, the burden of proving that fact is upon him.
In the case of Gurbakish Singh v. Gurdial Singh,18 the court observed:
“it is the bounden duty of a party, personally knowing the whole circumstances of a case,
to give evidence on his own behalf and to submit to cross examination. His non-
performance of the same would be the strongest possible circumstance to discredit the truth
of his case.”
BB. It is contended that based on the above mentioned provisions the fact of illegal organ
trade in the State of Neelambhari as claimed by the Petitioner Dr. Annu is well within his
own personal knowledge and thus the burden to prove the same lies on him. The State calls
upon the petitioner to submit the evidence he has collected in form of personal study and
make all of us here aware of his findings, the task which the petitioner has failed to
accomplish yet and thereby creating a circumstance enough to discredit the truth in his case.
CC. It is contended that the State does not believe that the petitioner has any evidence to
support his case and as established had filed the suit for the sake of publicity.
DD. In the case of Ashok Kumar Uttam Chand Shah v. Patel Mohammad Asmal
Chanchad,19 the court was pleased to state:
“Genuine and correctness of document have to be proved by a person who believes upon
it by direct and cogent evidence.”
15
In pari materia with Sec. 62 of Indian Evidence Act, 1872.
16
17
18
(1927) 29 Bom LR 1392 PC
19
AIR 1999 GUJ 108

The State contends that firstly the petitioner should produce such research before the
Hon’ble Court and then prove it to the Hon’ble Court that such document is genuine and
correct in nature.
EE.It is an established fact that the petitioner had received several phone calls from unknown
persons communicating their enthusiasm in donating organs for getting payment. Also he
received several calls from people addressing themselves as agents offering tempting deals.
FF. Section 202 of the Indian Penal Code reads:
Intentional omission to give information of offence by person bound to inform. – Whoever,
knowing or having reason to believe that an offence has been committed, intentionally
omits to give any information respecting that offence which he is legally bound to give,
shall be punished with imprisonment of either description for a term which may extend to
six months, or with fine, or with both.
It is contended that as the petitioner claims that he had personal information about people
looking to sell their organs for money, which is a crime under THOA,1994 , the petitioner
did not respond to the same by reporting the matter to the Police Authority.
GG. It is important to note herein that the petitioner who calls himself a public spirited
individual who is knocking the door of the court to save the interests of public, wasn’t he
under the obligation to report such happenings there and then itself. Another significant
detail is that no Police Department in the State of Neelambhari was contacted by any doctor
or any person in that regard for lodging a complaint in this regard. The petitioner has failed
to report an ongoing offence, which if real, could have been exposed by the Police upfront.
HH. In the case of Harding v. Prince,20 the Divisional court was pleased to state:
“Unless a man knows about the happening of an event he is not bound by the duty to report
the same. If the duty were to report, then the matter which is in the knowledge of a man can
only be reported.”
In the case of Bhagwan Swarup v. State of Rajasthan,21 the court observed:
“it was the duty of the accused (husband) to report immediately to the police of the death
of his wife, whereas, he failed to do the same.”
The accused herein was convicted for an offence under Section 202 IPC and sentenced to
6 months rigorous imprisonment.
20
(1948) 1 All ER 283 (KBD)
21
AIR 1991 SC 2062

II. The Petitioner who remained silent during the commission of the offence and did not make
an attempt to inform any authority to stop the same, took his own time to do something
bigger which would attract more attention whereas he had complete knowledge of the
happenings. This very act of the Petitioner makes him liable under Section 202 of the IPC.
JJ. It is thereby contented that the accusation made by the Petitioner has no grounds and should
be dismissed at the threshold itself. The Petitioner’s NGO ‘3’H( Home for Health & Hope)
connotes a Hope for publicity and private interest rather than serving the greater good of
public interest.

CONSTITUTION OF BRIHATHA?
3.1. Whether the Act in question is in violation of Art. 25?
A. It is an established fact that Adhisangh is a religious minority existing in Adhibhoomi, a

province in the state of Neelambhari. They are the followers of Bhramasmi religion which
means “God exists in our-selves and human body is a sanctum where the god lives.” They
have their own treatment methods known as “Ahamveda” which uses medicinal plants and
their extracts to treat diseases. This principle is based on the notion that nature shall cure
every disease of man and all living creatures.
B. It is contended by the Petitioner that the Act in question frustrates the religious freedom of
religious minorities, in this case, the Adhisangh Community.
C. It is established that Lord Anay is the founder of Brahmasmi religion. It should be noted
that the word “Anay” means conqueror of fire, almighty, immortal etc. Anay is the name
of Lord Vishnu as rendered in Vishnu Shastranam, which is a sacred text containing 1000
names of the great Lord Vishnu.
Therefore it is contended that the Adhisangh community are followers of the Great Lord
Vishnu.
D. The Shandilya and Varuna Upanishads list out the ten Yamas, i.e. the restraints and the ten
Niyamas, i.e. Observances or Practices as laid down by Lord Vishnu.
In the ten Niyamas propounded Daana i.e. Charity or donation lies at the third place. It is
to be noted that Lord Vishnu himself has placed the concept of charity or donation in the
third place as to how a human being should conduct himself. Often we trade one thing in
exchange to get something else, but the whole of nature works for nothing in return. This
is the concept of Satwik Karma laid down by Lord Krishna. Satwik karma is performed

when a person acts selflessly, without any expectation of a reward to help the fellow men
in the society.
Lord Anay being none another than Lord Vishnu himself has propounded these virtues and
it is the least to expect that a man who is a true follower of Lord Anay should also follow
all his principles.
E. Chapter 2 Verse 20 of the Bhagwat Gita reads:
न जायते िम्रयते वा कदािच नायं भूत्वा भिवता वा न भूय: |
अजो िनत्य: शाश्वतोऽयं पुराणो न हन्यते हन्यमाने शरीरे || 20||
This means that the soul is neither born, nor does it ever die; nor having once existed, does
it ever cease to be. The soul is without birth, eternal, immortal, and ageless. It is not
destroyed when the body is destroyed.
Chapter 2 verse 22 of the Bhagwat Gita reads:
वासांिस जीणार्िन यथा िवहाय नवािन गृह्णाित नरोऽपरािण |
तथा शरीरािण िवहाय जीणार् न्यन्यािन संयाित नवािन देही || 22||
As a person sheds worn-out garments and wears new ones, likewise, at the time of death,
the soul casts off its useless worn out body and enters a new one.
It is contended that in reference to both these verses which have been given by Lord Krishna
the human body is referred to as a useless worn out body after death and it is said not to
express any kind of grief for the body. It is the soul which travels from one body to another.
Since the Act in question gives an opportunity to an individual to perform Satwik Karma
by following the principle of Daana, the followers of Lord Anay should welcome the same
with open arms in true spirit of religion and faith towards the Great Lord.
F. The teacher of Ahamveda who established the science on the principle of spirituality and
ethics was Vagbhata. He in his bool Astanga Hridaya says: “Sukartah Sarvabhutanam,
Matah Sarva Pravartyaha, Sukham ka na vina Dharamt, thasmad dharmaparo bhavet.” This
means: All activities of man are directed to the end of attaining happiness, whereas
happiness is never achieved without righteousness. It is the bounded duty of man to be
righteous in his actions.
G. It is therefore contended that the founder of the concept of Ahamveda himself has said a
man should always be righteous in his actions. What can be more righteous than giving life
even in death. Thus the State contends that the provisions of the Act in question do not
infringe the interests of the Adhisangh community and thus is not violative of the rights of

religious minorities. The act is secular in nature and does not discriminate on the basis of
religion, caste or sect but places all the individuals on the same scale. One should not forget
that the biggest religion of all is humanity and the Act is built up on the same notion.
H. The Act in question guarantees to individuals and incorporates religious freedom. It deals
with an individual as a citizen irrespective of his faith and religious belief. It does not
promote nor prefer any specific religion. In the case of Court on its Own Motion v.
Government of NCT of Delhi,22 laid down:
“A secular state does not extend patronage to any particular religion. It is not pro or anti-
pro any religion. The state maintains neutrality in matters of religion.”
The Act in question promulgated by the state of Neelambhari is of a secular nature and it
does not extend patronage to any one religion but maintains neutrality on that part by
allowing anyone and everyone to be a donor.
I. In the case of S.R Bommai v. Union of India,23 Justice B.P Jeevan Reddy observed:
“…while citizens of this country are free to profess, practice and propagate such religion,
faith or belief as they choose, so far as the state is concerned, i.e., from the point of view
of the state, the religion, faith or belief of a person is immaterial. To it all are equal and
all are entitled to be treated equally.”
It is contended that the Act in question allows all the individuals who are citizens of the
Union of Brihatha irrespective of religion, caste or any sect to become a donor under the
Act. It does not discriminate or disallow any person from donating his or her organs for
therapeutic purposes.
J. In the case of Commr., HRE, Madras v. Sri Lakshmindra,24 the court observed:
“ The guarantee under Article 25 confers a fundamental right to every person not merely
to entertain such beliefs as are allowed to him by judgement or conscience, but also:
i. To exhibit his belied and ideas in such overt or outward acts and practices as
are sanctioned or enjoined by his religion, and further
ii. To propagate and disseminate his religious beliefs, ideas and views for the
benefit and edification of others.”
K. Further the Court in the case of P.M.A Metropolitan v. Moran Mar Marthoma,25
observed:
22
2012 (192) DLT 2009
23
AIR 1994 SC 1918
24
AIR 1954 SC 282,290
25
AIR 1995 SC 2001,2026

“Religion is the belief which binds spiritual nature of men to super natural being. Religious
right is the right of a person believing in a particular faith to practice it, preach it and
profess it.”
L. It is hereby contended that the Act in question in no possible scenario bars any individual
from practicing or propagating their religion nor does it bar the enjoyment of any religious
right enumerated under Article 25 of the Constitution of Brihatha. The provisions of the
Act in question are completely secular in nature and are equally applicable to all citizens.
It is further contended that there is no provision in the Act casts a fundamental duty on the
citizens to perform organ donation or forces any person from any community to act as a
donor. All provisions of this act are attracted to only those citizens who voluntarily come
up for the act of Organ donation and thus the Act does not violate Article 25 of the
Constitution of Brihatha.
3.2. Whether the Act is in violation of Art. 14 and Art. 15(1)?
M. As stated in Re Special Reference No. 1 of 2012,26

“The underlying object of Article 14 is to secure to all persons, citizens or non-citizens the
equality of status and opportunity referred to in the Preamble of our constitution.” Further
it was stated in Indira Sawhney v. UOI,27
“Equality is one of the magnificent corner stones of Indian Democracy.”
It is hereby contended that the Act in question promulgated by the State is not in violation
of Article 14 of the constitution of Brihatha.
N. The Hon’ble Supreme Court in the case of K. Thimmappa v. Chairman, Central Board
of Directors,28 observed:
“When a law is challenged to be discriminatory especially on the ground that it denies
equal treatment or protection, it is necessary to show that the selection or differentiation
is unreasonable or arbitrary, that it does not rest on any rational basis having regard to
the object which the legislature has in view.”
O. In Ashutosh Gupta v. State of Rajasthan,29 the Supreme Court has explained the initial
presumption of validity as follows:
26
(2012) 10 SCC 1 (77)
27
AIR 1993 SC 477
28
AIR 2001 SC 467
29
(2002) 4 SCC 34 at 41: AIR 2002 SC 1533

“There is always a presumption in favour of the constitutionality of the enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. It must be presumed that the legislature understands and
correctly appreciates the need of its own people.”
P. It is contended that the act promulgated by the State has no clause which differentiates
people or that is unreasonable or arbitrary. It allows all citizens to come forward, providing
them with the same opportunity and right to donate organs voluntarily. The provisions of
the Act meet the objective which the legislature had in view before passing it. The Act was
passed to meet the increasing demand of organ donations because lives at stake were being
lost due to poor population of organ donors.
Thus the State contends that the legislature passed by it is not in violation of Article 14 of
the Constitution of Brihatha.
Q. Article 15(1) specifically bars the state from discriminating against any citizen of India on
grounds only of religion, race, caste, sex, place of birth, or any of them. Commenting on
Article 15(1) in the case of Valsamma Paul v. Cochin University,30 the Supreme Court
observed:
“It prohibits discrimination on grounds of religion or caste identities so as to foster
national identity which does not deny pluralism of Indian Culture but rather to preserve
it.”
R. It is contended that the Act in question promulgated by the State of Neelambhari does not
discriminate any citizen on the grounds of religion, race, caste, place of birth, or any of
them. The Act allows all citizens to come out voluntarily and donate organs. Thus the Act
of 2019 is not in violation of Article 15 of the Constitution of Brihatha.
3.3. Whether the Act in question is in violation of Article 21?
S. In the case of Francis Coralie v. U.T of Delhi,31 Justice Bhagwati observed:

“Article 21 embodies a constitutional value of supreme importance in a democratic
society.”
T. It is an established fact that the state has promulgated the Act in question with the object
of increasing the number of organ donors and save hundreds of lives which were at stake
30
AIR 1996 SC 1011 at 1019 : (1996) 3 SCC 545
31
AIR 1981 SC 746,752

due to insufficient organ donors. The act was promulgated to save lives at a large scale. In
the case of Inderjit Barua v. Assam,32 the court observed:
“If a law ensures and protects the greater social interest , then such law will be regarded
as a wholesome and beneficial law although it may infringe the rights of some individuals.”
So in the present scenario even if the State allows itself to enter into the hypothetical
situation created by the petitioners wherein the act is a bad law and frustrates religious
freedom of religious minorities, the objective of the act being to save the lives of people
who face life threats due to organ failures, i.e. to serve the greater good should be treated
as a beneficial law as observed by the Hon’ble Court.
U. In the case of Pashcim Banga Khet Mazdur Samiti v. State of West Bengal,33 the court
observed:
“Article 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.”
It is contended that the Act in question has been promulgated by the State keeping in mind
the same principle.
V. In the case of Vincent v. UOI,34 the court observed:
“Maintenance and improvement of public health have to rank high as these are
indispensable to the very physical existence of the community and on the betterment of
these depends the building of the society of which the constitution makers envisaged.
Attending to public health, is of high priority-perhaps the one at the top. Therefore it is the
obligation of the State to insure the creation and the sustaining of conditions congenial to
good health.”
It is contended that the Act promulgated by the State is with identical notion and gives the
concept of public health utmost priority. The legislation allows people to come forward and
donate their organs to save lives and maintain quality human life standards among the
public. Therefore it is further contended that the provisions of this Act in question are in
furtherance of the objective placed by Article 21 and thus not in violation of the same.

DOCTOR WITHOUT PROPER CONSENT JUSTIFIED?
32
AIR 1983 Del 513
33
AIR 1996 SC 2426
34
AIR 1987 SC 990

A. It is established that Sami was brought to the hospital as a brain death case and the same
was confirmed by the attending doctors. That the 5 year old girl was in urgent need of a
kidney transplant. That there has been no mention of any near relative or family member
of Sami in the entire factual matrix. That consent for transplantation was obtained from the
youths who brought Sami to the hospital.
B. It is stated that Brain death is a legal definition of death. It is the complete stopping of all
brain function and cannot be reversed. It means that, because of extreme and serious trauma
or injury to the brain, the body's blood supply to the brain is blocked, and the brain dies.
Brain death is death. It is permanent. Once the diagnosis of brain death is made, an
individual is pronounced legally dead. This is the time that should appear on the death
certificate. The time of death is not the time when the ventilator is removed.
C. In the case of Dr. Laxman Balkrishna Joshi v. Dr. Trimbark Babu Godbole,35 it was
observed:
“A doctor owes a duty of care in deciding what treatment is required to be given and in
administration of that treatment to the patient”.
In this case, the facts establish that the patient was in urgent need of a kidney transplant
and thus the Doctor was under the obligation to provide the necessary treatment. The
doctors take the Hippocratic oath to inculcate the qualities of a good physician, with an
emphasis on healing the patient. The oath resounds with advice to the physician to follow
the method of treatment which according to his ability and judgement is the most suitable
for the benefits of the patient.
D. In the case of Francis Coralie v. Administrator, U.T of Delhi,36 the court observed:
“Life in article 21 does not merely mean animal existence but living with human dignity.”
In the case of Chameli Singh v. State of U.P,37 the court observed:
“In any organised society the right to live as human being is only secured when he is
assured of all facilities to develop himself and is freed from restrictions which inhibit his
growth.”
In the case of Vincent v. UOI,38 the court observed:
“A healthy body is the very foundation of all human activities. That is why the adage
Sariramaldyam Khalu Dharam Sadhanam”
35
AIR 1969 SC 128
36
AIR 1981 SC 746 at 753
37
AIR 1996 SC 1051
38
AIR 1987 SC 990

E. It is hereby contended that the act of the doctor to transplant the kidney of Sami to the 5
year old girl is in furtherance of his duty as a doctor and also in furtherance of the right of
the patient under Article 21. She has the right to live with human dignity getting all the
facilities that aid her growth. She has the right to have a healthy body. Kidney failure in
this scenario is and inhibition to the same and the act of the Doctor was intended at the
removal of this inhibition.
F. It is established that the girl was in need for an urgent kidney transplant. Thus it would be
fit to call that the situation in hand was an emergency situation none the less. In the case of
Dr. Laxman Balkrishna Joshi v. Dr. Trimbark Babu Godbole,39 it was observed:
“the doctor, no doubt, has a discretion in choosing the treatment which he proposes to give
to the patient and such discretion is relatively ampler in cases of emergency”
In the case of Samira Kohli v. Dr. Prabha Manchanda,40 the court observed:
“the question of waiting for consent of the patient or his family only arises when there is
an absence of an emergency”.
G. In the landmark case of Pravat Kumar Mukherjee v. Ruby General Hospital,41 the
following observations were made:
“Since emergency treatment is required to be given to a patient who was brought to the
hospital there was no question of waiting for consent. Consent is implicit in such
cases. Waiting for consent of a patient or a passer-by who brought the patient to the
hospital is nothing but absurd and is apparent failure of duty on the part of doctor.”
It was further observed:
“This may serve the purpose of bringing about a qualitative change in the attitude of the
hospitals of providing service to human beings as human beings. A human touch is
necessary; that is their code of conduct; that is their duty and that is what is required to be
implemented. In emergency or critical cases, let them discharge their duty/social obligation
of rendering service without waiting for fee or for consent.”
H. From the observations made by the courts it is now clear that the concept of waiting for
consent in emergency cases is waived off. The sole reason for this is that saving the life of
a person is more important than waiting for someone to step in and allow them to do the
same.
39
AIR 1969 SC 128
40
(2008) CPJ 56 (SC)
41
(2005) CPJ 35 (NC)

It is the duty of a doctor to save the life of a patient and any act in furtherance of the same
is in furtherance of Article 21. Thus the state contends that the act of the doctor to transplant
the kidney of Sami is justified as it is in pursuance of his duties. The act of not waiting for
proper consent is justified as saving the life of the patient was a necessity in the scenario.
Therefore the doctor is not only protected by law for his actions but also justified for his
actions.
I. It is contended that the provisions of the Act in question are in furtherance of the religious
views of the Adhisangh community as established earlier. The community believes that
god exists in ourselves and that the human body is a sanctum where the god lives. The god
in each person as interpreted by Lord Krishna in verse 2:22 of Bhagwat Gita is nothing but
the soul of the person which passes on to another body after death. The human body is just
a useless worn out part after death. So if we consider the parts of human body to be pillars
of the sanctum where god resides, in the present scenario, one of the pillars is being donated
to provide strength to another sanctum of god, where god resides. Metaphorically speaking,
all of us agree on the fact that god exists in each and every one of us.
J. The principle of Aham, which is part of the religion of Brahmasmi forms part of a shloka
from the Shukla Yajurveda i.e. Aham Brahmasmi which means that the primeval energy
that presided over the creation of the universe, resides in all living beings. Everyone is
bound by a common destiny: we come from dust and go back to dust. So talking
metaphorically again, the pillar of the sanctum which has been donated will also find its
way back to the earth in one form or other.
It is rightly said that to understand a religion one should not follow the teachings of its
followers but one should follow the scriptures. The scriptures herein have shown the right
path and the state thereby contends that the agitations caused are only because of
misinterpretation of scriptures and do not have any religious ground.
K. The State would conclude by stating that firstly the suit is not maintainable; and secondly
that the Act in question promulgated by the State of Neelambhari is in line with the
provisions of the Central Act i.e. THOA, 1994; is not ultra vires to the provisions of the
constitution; and finally that the act of organ transplantation of Sami is justified.
L. The State of Neelambhari rests its motion.

PRAYER
In light of the issues raised and arguments advanced, the counsel on behalf of the Respondent
humbly prays before this Hon’ble Court to kindly dismiss the Petition and declare that:-
1. The Respondent, i.e. State of Neelambhari, has the authority to promulgate the Act in
question.
2. The Act in question is not in contravention to the provisions of THOA,1994.
3. The Act in question is not ultra-vires to the Constitution of Brihatha.
4. The action of the doctor to perform the organ transplantation is justified.
And pass any other appropriate order as the court may deem fit in the interest of equity, justice
& good conscience.
And for this act of kindness, the Respondent shall forever pray.
Respectfully Submitted
Sd/-
Counsel of the Respondent

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1ST B.S.

ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION

1ST B.S. ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION – 2019

BEFORE THE HON’BLE SUPREME COURT OF BRIHATHA

W.P. No. ……(2019)

PETITION FILED UNDER ARTICLE 131 OF THE CONSTITUTION OF

UNION OF BRITATHA, …………Petitioner No.1

BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE OF BRIHATHA AND HIS

MEMORIAL ON BEHALF OF RESPONDENT

Memorial for Respondent 1

S. No. Topic Page No.

5. Statement of Issues Raised 11

Memorial for Respondent 2

ABBREVIATION FULL FORM

AIR All India Reporter

M.P. Madhya Pradesh

R&D Research and development

SCC Supreme Court Cases

SCR Supreme Court Reporter

THOA Transplantation of Human Organs Act, 1994

U.P. Uttar Pradesh

Memorial for Respondent 3

• The Constitution of India, 1950.

• Ashok Kumar Pandey v. State of W.B.; (2004) 3 SCC 349

Memorial for Respondent 4

• Pravat Kumar Mukherjee v. Ruby General Hospital; (2005) CPJ 35 (NC)

Memorial for Respondent 5

Art. 131 – Original Jurisdiction of the Supreme Court

(a) between the Government of India and one or more States; or

Art. 139A – Transfer of Certain Cases

Memorial for Respondent 6

Memorial for Respondent 7

BACKGDROUND OF THE FACTS

Memorial for Respondent 8

THE ADHISANGHS COMMUNITY

• Adhisangh is a religious minority exist in Adhibhoomi, a province in Neelambhari.

PETITION FILED BY NAYADEEP

Memorial for Respondent 9

MATTER BEFORE THE HON’BLE SUPREME COURT OF BRIHATHA

Memorial for Respondent 10

STATEMENT OF ISSUES RAISED

ISSUE 1: WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

ISSUE 2: WHETHER THE ACT IN QUESTION IS IN VIOLATION OF

ISSUE 3: WHETHER THE ACT IS ULTRA-VIRUS TO THE PROVISIONS OF THE

ISSUE 4: WHETHER THE ACT OF ORGAN TRANSPLANTATION BY THE

Memorial for Respondent 11

ISSUE 1: WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

ISSUE 2: WHTHER THE ACT IN QUESTION IS IN VIOLATION OF

i. Flexible provisions which facilitate illegal organ trade.

Memorial for Respondent 12

ISSUE 3: WHETHER THE ACT IS ULTRA-VIRUS TO THE PROVISIONS OF THE

ISSUE 4: WHETHER THE ACT OF ORGAN TRANSPLANTATION BY THE

Memorial for Respondent 13

ISSUE 1: WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

Memorial for Respondent 14

Memorial for Respondent 15

Memorial for Respondent 16

Memorial for Respondent 17

Memorial for Respondent 18

Memorial for Respondent 19

1.2. Whether the Petition filed by Petitioner No. 1 is maintainable?

Memorial for Respondent 20