Petitioner 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
O.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 PETITIONERS
Memorial for Petitioner 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 07
4. Statement of Facts 09
5. Statement of Issues Raised 12
6. Summary of Arguments 13
7. Arguments Advanced 16
8. Prayer 40

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:
• Arup Kumar Das v. State of Orissa; 106 (2008) CLT 292.

• BALCO Employees v. Union of India; (2002) 2 SCC 333.
• Bihar Legal Support Society v. Chief Justice of India; AIR 1987 SC 38.
• Bijoe Emmanuel v. State of Kerala; AIR 1987 SC 748.
• Bishan v. Govt. of Punjab; AIR 1953 Pat 87.
• Fertilizer Corporation Union v. Union of India; AIR 1981 SC 344.
• Francis Coralie v. U.T of Delhi; AIR 1981 SC 746,752
• Gyani Davender Singh Sant Sepoy v. Union of India; AIR 1995 SC 1874.
• Hajee Mohammad Ghouse( in re:); (1903) 1 Weir 287.
• HRE Madras v. Sri Lakshmindra; AIR 1954 SC 282.
• Hur Prasad v. Sheo Dayal; 26 W.R 55 (P.C.).
• Janata Dal v. H. S. Chowdhary; AIR 1993 SC 892.
• Jeevan Kuman Raut v. CBI; SLP(Crl.) Nos. 1035-1036 of 2009.
• Kartar Singh v. State of Bihar; 1956 SCR 476.
• Krishnadas C. v. State of Kerala; 2015 (4) KLT SN 109.
• Madhu v. Kuttan; (1993) 2 KLT 1067.
• Mahamaya v. Haridas; I.L.R 42 Cal. 455.
• Marimuthu v. State; 2015 (4) KLT SN 109.
• Mujeeb Bhai v. State of U.P.; Civil Misc. W.P No. 38985 of 2004.
• Patmanand Katra v. Union of India; (1995) 3 SCC 248.
• Peoples’ Union for Civil Liberties v. Union of India; AIR 1982 SC 1473.
• R.M.D.C v. State of Mysore; AIR 1962 SC 594.

• S. Sethuraja v. Chief Secretary, Govt. of Tamil Nadu; (2007) 5 MLJ 404

• S.K. Srivastava v. Deputy Registrar, University of Allahabad; AIR 1998 All 101.
• S.P. Gupta v. Union of India; AIR 1982 SC 149.
• Sadhanatham v. Arunachalam; AIR 1980 SC 856
• Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd.; AIR
1962 SC 1314
• State of Karnataka v. Union of India; AIR 1978 SC 143.
• State of Rajasthan v. Union of India; AIR 1977 SC 1402.
• Subramanian Chettiar v. Kumarappa Chettiar; AIR 1995 Mad 144.
• Unnikrishnan v. State of A.P.; AIR 1993 SC 2178.
• Vareed Porinichukutty v. State of Kerala; 1971 KLT 204.
• Vijay Kumar Sharma v. State of Karnataka; AIR 1990 SC 2072.
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 Petitioner humble submits 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
1
In parimateria with Art. 131 and Art. 139A of the Constitution of India.

any case so withdrawn together with a copy of its judgment on such 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.
Hence, it is humbly submitted that the Hon’ble High Court of Brihatha has the jurisdiction to
entertain the Petition.

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 Adhisanghs 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 OF BRIHATHA?
ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF THE ACT IN QUESTION

FACILITATE ILLEGAL ORGAN TRADE?
ISSUE 3: WHETHER THE PROVISIONS OF THE ACT IN QUESTION VIOLATES THE

RELIGIOUS FREEDOM OF RELIGIOUS MINORITIES LIKE ADHISANGH
COMMUNITY?
ISSUE 4: WHETHER THE PROVISIONS OF THE ACT IN QUESTION ARE

INCONSISTENT WITH REFERENCE TO TRANSPLANTATION OF HUMAN ORGANS
ACT, 1994?

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

SUPREME COURT?
A right without a remedy does not have much substance. The rights enshrined under the
constitution would have been worth nothing had the Constitution not provided an effective
mechanism for their enforcement. 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 contended that the transfer of the Petitions filed before
the Hon’ble High Court of Neelambhari to this Hon’ble Court is valid and justified as it is entirely
to provide justice to the public at large, particularly the Adhisanghs community in the State of
Neelambhari.
ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF HE ACT IN QUESTION

FCILITATE ILLEGAL ORGAN TRADE?
Organ transplantation is one of the most remarkable medical inventions of the twentieth century.
Ever since the first successful transplants in the 1950s, organ transplantation has saved and
prolonged the lives of thousands of patients. Today it is a worldwide practice, conducted in
hospitals in almost 100 countries all over the world. Survival rates of transplant patients have risen
significantly over the past decades.The Union law has been framed in light of the guidelines of all
the International bodies. The union is of the opinion that human body should not be treated as an
object of financial gains. Therefore the Union contends that a law in favour of the same should be
declared invalid.
It is established that the State of Neelambhari is renowned for its health sector and the state offers
the most advanced medical facility among the entire country. Excellent expertise and affordability
are some among the hallmarks of the health sector of Nelaambhari. This very factor invited global
attention and every year the state marked a substantial increase in number of overseas visitors.

Health sector is the foremost revenue source of the state and the state is promoting health tourism
to a great extent. On daily basis visitors from numerous countries are visiting the state of
Nelaambhari for their various health needs.
The Union contends that the State has hidden agenda in commercialising organ transplantation and
that it seeks to increase the revenue generated from the health sector. It is further contended that
such commercialisation is an attempt made by the State in lieu of promoting the health tourism to
a greater level.
COMMUNITY?
It is established that Adhisangh is a religious minority existing in Adhibhoomi, a province in the

State of Neelambhari. They are the followers of Brahmasmi religion, which means “god exists in
ourselves and the human body is a sanctum where the god lives.” This community neither believes
or intends to follow modern medicine and have their own treatment methods called Ahamveda,
which uses medicinal plants and their extracts for treatment. The Union contends that the State is
standing in favour of the principles of the Act in question and that the Act is constitutional in
nature. So when the act of the doctor is completely in violation of the State enacted law, then why
is the State standing up to defend the same. Why is it that the State has not come forward and
accept the mistake or wrongdoing of the Doctor and set an example for the future code of conduct
of other doctors or has it been in favour of Doctors performing organ transplants illegally all along.
Why is it that the State is playing on two fronts and not coming up clean in this regard.

ACT, 1994?
It is established that the objective of the State promulgated Act are to cure the rigidity of the
existing laws regarding organ transplantation and to create awareness among the people about the
need for organ donation. The Union therefore contends that in light of the provisions incorporated
the sole objective of the State is commercialisation of organ donations. The Union finally contends
that the nature of commercialisation of the Act in question through its provisions makes it a bad

law for the country. The State action of coming in aid and defence of the Doctors further gratify
the issue and shows a shady conduct on behalf the State. It is further contended that the provisions
with respect to commercialisation should be held void and the Act of the Doctor to be considered
against the principles of law.

ARGUMENTS ADVANCED
ISSUE I: WHETHER THE PETITION IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT?
I.1. Whether the Petition filed by Petitioner No. 2 & 3 is a PIL?
A. A right without a remedy does not have much substance. The rights enshrined under the
constitution would have been worth nothing had the Constitution not provided an effective
mechanism for their enforcement.
B. Article 226 of the Constitution confers on any person the right to approach the High Court
when there is a violation of any legal right. It is a fast summary mechanism for the enforcement
of a Fundamental Rights as well as other rights.
C. In Bishan v. Govt. of Punjab2, it was held that if a remedy is available in the lower forum, it
should be seeked first and then only if aggrieved, one must approach the higher forum. Thus,
it is contended that the Petitioner No. 2 & 3 have rightly taken the recourse under Art.226 of
the Constitution to file a PIL as public spirited persons.
D. 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.
E. Further, in the case of BALCO Employees v. Union of India3, the following parameters of a
PIL were laid down by the Hon’ble Supreme Court; even if one or more of these are satisfied
then the petition can be treated as a PIL. These are not exclusive but merely descriptive:
o Where the concerns underlying a petition are not individualist but are shared widely
by a large number of people.
2
AIR 1953 Pat 87.
3
(2002) 2 SCC 333.

o Where the affected persons belong to the disadvantaged Sections of society (women,
children, suppressed community etc.)
o Where judicial law making is necessary to avoid exploitation (inter-country adoption,
the education of the Children of the prostitutes). 
o Where judicial intervention is necessary for the protection of the sanctity of democratic
institutions (independence of the judiciary, existence of grievances redressal forums).
o Where administrative decisions related to development are harmful to the environment
and jeopardize people's interest to natural resources such as air or water.
It is contended that this Petition fulfils the above laid criteria and thus it must be treated as
Public Interest Litigation. The Petitioners are associations which represents interest of the
public at large, particularly the religious suppressed community of Adhisanghs who have
suffered gravely due to this Act and have come to seek justice in this court of law.
F. The scope of Public Interest Litigation has been rightly explained in the case of Peoples’ Union
for Civil Liberties v. Union of India4.
“1476. PIL is brought before the Court not for the purpose of enforcing right of one individual
against another as it happens in the case of ordinary, but it is intended to promote and
vindicate public interest which demands that violation of constitutional or legal rights of large
number of people who are poor, ignorant or in a socially or economically disadvantaged
position, should not go unnoticed and unredressed.”
G. In case of Gyani Davender Singh Sant Sepoy v. Union of India5, the Hon’ble Supreme Court
held that the High Court, while entertaining a PIL must indicate how the public interest was
involved in the case.
Here, too, the Petitioners have knocked the doors of this Hon’ble Court as the very provions
of the Act in question infringes the rights of public at large and is against their interest. Thus,
this very matter shall not go unnoticed and unredressed and the very interest of the public, in
particular the Adhisanghs, shall be protected as the Act is completely supressing their religious
beliefs.
4
AIR 1982 SC 1473.
5
AIR 1995 SC 1874.

I.2. Whether the Petitioner No. 2 & 3 are having the locus standi to file PIL?
H. The case of Janata Dal v. H. S. Chowdhary6 indicated that in defining the rule of locus standi
no rigid litmus test can be applied as the law is still developing.
“68. Though we have, in our country, recognised a departure from the strict rule of locus standi
as applicable to a person in private action and broadened and liberalised the rule of standing
and thereby permitted a member of the public, having no personal gain or oblique motive to
approach the court for enforcement of the constitutional or legal rights of socially or
economically disadvantaged persons who on account of their poverty or total ignorance of
their fundamental rights are unable to enter the portals of the courts for judicial redress, yet
no precise and inflexible working definition has been evolved in respect of locus standi of an
individual seeking judicial remedy and various activities in the field of PIL. Probably, some
reservation and diversity of approach to the philosophy of PIL among some of the Judges of
this Court as reflected from the various decisions of this Court, is one of the reasons for this
Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in
defining the rule of locus standi no 'rigid litmus test' can be applied since the broad contours
of PIL are still developing apace seemingly with divergent views on several aspects of the
concept of this newly developed law and discovered jurisdiction leading to a rapid
transformation of judicial activism with a far reaching change both in the nature and form of
the judicial process.”
I. Justice Bhagwati, S.P. Gupta v. Union of India7 stated: same was retrieated
“Any member of the public having sufficient interest can maintain an action for judicial
redress for the public injury arising from breach of any public duty or from violation of some
provision of the Constitution or the law and seek enforcement of such public duty and
observance of such constitutional or legal provisions.”
Dr. Annu Kapoor is a well-known personality for his works in ethical medical practices. He is
also the founding director of the Erena Hospital, a place where ethics and expertise unites. In
short, he is a credible as well as an ethical doctor. Nayadeep is an organisation working for the
6
AIR 1993 SC 892.
7
AIR 1982 SC 149.

protection of the interests of the indigenous communities. Thus, it is contended that the
Petitioners are the public spirited individuals and have approached the concerned High Courts
as public spirited people to initiate an action for judicial redressal as the provisions of the Act
so enacted is causing grave injury to the people residing in the State of Neelambhari,
particularly the Adhisanghs.
J. In the case of Bihar Legal Support Society v. Chief Justice of India8, the SC laid down that:
“Ordinarily only a person whose rights are violated can move to a Court for redress. However,
where there is likelihood of any Govt. injuring the interests of many persons any one can move
to the Court for relief.”
K. In the present factual matrix, it is the Govt. that enacted this Act which has caused violation of
interests of public at large because as per this Act several unauthorised and illegal incidents of
organ trade have happened in Neelambhari. Not only this, but this Act is a bad law that
frustrates the religious freedom of the religious minorities, particularly the Adhisanghs in
Neelambhari.
L. In Fertilizer Corporation Union v. Union of India9, Justice Chandrachud held that:
“38. We have no doubt that in a competition between Courts and streets as dispenser of justice,
the rule of law must win the aggrieved person for the law Court and wean him from the lawless
street. In simple terms, locus standi must be liberalised to meet the challenges of the times. Ubi
jus ibi remedium must be enlarged to embrace all interests of public minded citizens or
organizations of public resources and the direction and correction of public power so as to
promote justice in its triune facets.”
M. The public is vitally interested in the cleanliness of the administration of justice which is of
paramount importance. Public interest is the hallmark of public good. A person genuinely or
bona fide interested in seeking declaration of law of public importance would always get
sufficient interest and be entitled to seek declaration on that behalf. The Petitioners herein are
acting in a bona fide manner for undoing the grave injustice the Act has caused to the people
of Neelambhari. Thus, it is contended that the Petitioners very much have the locus standi to
file the PIL.
8
AIR 1987 SC 38.
9
AIR 1981 SC 344.

I.3. Whether the Petition filed under Art. 131 of the Constitution is maintainable?
N. The Constitution of Brihatha sets up a federal polity where intergovernmental disputes often
arise. It, therefore, becomes necessary to set up a forum for resolving such disputes. Art. 131
does so by authorising the Supreme Court to settle intergovernmental disputes.
O. Justice Bhagwati has rightly observed in the case of State of Karnataka v. Union of India10
that:
“The article is necessary concomitant of a federal or a quasi- federal form of government and
is attracted only when the parties to the dispute are the Govt. of India or one or more States
arranged on either side.”
In the factual matrix, the Union of Brihatha, the Central Government and Ors., are on one side
and the State of Neelambhari on the other side.
P. Moreover, in the case of State of Karnataka v. Union of India11, Justice Bhagwati rightly
highlighted an important ingredient of Art. 131 that:
“204. The only requirement necessary for attracting the applicability of Article 131 is that the
dispute must be one involving any question “on which the existence or extent of a legal right”
depends, irrespective of whether the legal right is claimed by one party or the other and it is
not necessary that some legal right of the plaintiff should be infringed before a suit can be
brought under that article. The plaintiff must of course be a party to the dispute and obviously
it cannot be a party to the dispute unless it is affected by it. The plaintiff cannot raise a dispute
in regard to a matter which does not affect it or in which it is not concerned. It cannot act as
a mere busybody interfering with things which do not concern it. But if the plaintiff has interest
in raising the dispute in the sense that it is affected by the action taken, it can bring the dispute
before the Supreme Court under Article 131, even if no legal right of its is infringed, provided
of course the dispute is relatable to the existence or extent of a legal right.”
This same thing was even reiterated in the case of State of Rajasthan v. Union of India12.
10
AIR 1978 SC 143.
11
(1977) 3 SCC 592.
12
AIR 1977 SC 1402.

Q. In this present case it is contended that there is a vindication of a legal right of the Govt. of
Brihatha as the legislation in question is in contravention to the existing law of the land and
for transgressing the power enshrined by the Constitution13. Therefore, the present Petition
shall be maintainable before this Hon’ble Court.
I.4. Whether the transfer of Petition under Art. 139A to the Supreme Court is valid?
R. To facilitate quick disposal of cases, Article 139A(1) provides that if the cases involving
substantial question of law and of general importance are pending before the Supreme Court
and a High Court, or between two or more High Courts, the Supreme Court can withdraw the
cases from High Court and decide them itself.
S. Substantial question of law means that if there is a difference of opinion on any question of
law among High Court and there is no direct decision of the Supreme Court on that point.
General importance means importance to the public at large and not pertaining to an individual
only. Here, too the constitutionality of the Act in question is of general importance as it is
affecting almost all the people in the State of Neelambhari. Adding to this, the very Act is
subjected to being a substantial question of law as it is in contravention to the existing law of
the land and is thus transgressing the power enshrined by the Constitution.
T. Moreover in the case of Kartar Singh v. State of Bihar14, it was held that the Supreme Court
has the suo moto authority of passing an order of transfer. Here also the Supreme Court has
transferred this matter from the Hon’ble High Court of Neelambhari to itself as it expedient to
do so to meet the ends of justice.
U. In the case of Sir Chunilal Mehta and Sons Ltd. v. Century Spinning and Manufacturing
Co. Ltd.15 the Court held that:
“The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in
the sense that it is not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or calls for discussion of alternative views. If the question
13
Crescent School of Law, 1st B.S. Abdur Rahman National Moot Court Competition – 2019, Moot Problem Part –
IV.
14
1956 SCR 476.
15
AIR 1962 SC 1314.

is settled by the highest court or the general principles to be applied in determining the
question are well settled and there is a mere question of applying those principles or that the
plea raised is palpably absurd the question would not be substantial question of law.”
Here the question with regard to the constitutionality of the Act in question is substantial as it
is of general public importance and has not been decided by any court of law.
V. Thus, it is contended that the transfer of the Petitions filed before the Hon’ble High Court of
Neelambhari to this Hon’ble Court is valid and justified as it is entirely to provide justice to
the public at large, particularly the Adhisanghs community in the State of Neelambhari.
W. Thus, the Petition stands maintainable in this court to law.
ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF THE ACT IN QUESTION

FCILITATE ILLEGAL ORGAN TRADE?
A. Organ transplantation is one of the most remarkable medical inventions of the twentieth
century. Ever since the first successful transplants in the 1950s, organ transplantation has saved
and prolonged the lives of thousands of patients. Today it is a worldwide practice, conducted
in hospitals in almost 100 countries all over the world. Survival rates of transplant patients
have risen significantly over the past decades.
B. According to the Global Observatory and Database on Donation and Transplantation, the
product of a collaboration between WHO and the Spanish National Transplant Organization -
about 118,127 so-called solid organ transplantations (kidney, liver, heart, lung, pancreas, small
bowel) were performed in 2013, the majority of which, about 79,000, were kidney transplants,
followed by about 25,000 liver transplants. Kidney transplantation thus has to be considered
the most frequently carried out transplantation around the world.
C. Human organs for transplants have two sources, deceased donors and living donors.
Ultimately, human organs can only be derived from a human body, and thus any action in the
field of organ transplantation must be carried out in accordance with the highest ethical and
professional standards.
2.1 Whether payment for providing human organs for donation is valid?
D. Sec. 2(j) this very Act in question is states:

“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.
The very word ‘payments’ shows and states that the legislation is encouraging commercial
dealings of human organs.
E. The Union of Brihatha is a member of the United Nations Office on Drugs and Crime
(UNODC) and therefore is a part of the protocol issued by it to Prevent, Suppress and Punish
Trafficking in Persons, especially Women and Children, (Trafficking in Persons Protocol),
supplementing the United Nations Convention against Transnational Organized Crime
(Organized Crime Convention).
F. According to Article 3(a) of the Trafficking in Persons Protocol ‘Trafficking in persons’ shall
mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of
the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of
the abuse of power or of a position of vulnerability or of the giving or receiving of payments
or benefits to achieve the consent of a person, for the purpose of exploitation. Exploitation
shall include, at a minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude
or the removal of organs.
G. It is contended that payment made to the donor for the purpose of donation has the underlying
effect of obtaining the consent for donation by the impugned payment.
The World Health Organization (WHO) issued “Guiding Principles on Human Cell, Tissue
and Organ Transplantation”, which the 63rd World Health Assembly 9 endorsed in May 2010
through resolution WHA63.22. Guiding Principle 5 of the WHO Guiding Principles on Human
20 Cells, Tissue and Organ Transplantation requires that:
i. organs should only be donated freely, without any monetary payment or other
reward of monetary value.
ii. purchasing, or offering to purchase organs for transplantation, or their sale by
living persons should be banned.
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.”
H. Further the Additional Protocol to the Convention on Human Rights and Biomedicine
concerning Transplantation of Organs and Tissues of Human Origin declares, in Art. 21, that
the human body and its parts shall not, as such, give rise to a financial gain or comparable
advantage.
I. In one of the cases under the UNODC Human Trafficking Department,16 the defendant, who
had coerced the victim to sell his kidney for money, was found guilty of the offence of selling
or giving up of organs in exchange for money.
J. The Union contends that all these Guidelines issued by the World Health Organisation and the
Protocols and principles of the UNODC, one can come to a conclusion that human body and
its parts are not be used for the purpose of financial gains and therefore in light of the same the
Transplantation of Human Organs Act,1994 under Section 19, has made commercial dealings
in human organs a punishable offence. It reads:
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.
The Union law has been framed in light of the guidelines of all the International bodies. The
union is of the opinion that human body should not be treated as an object of financial gains.
Therefore the Union contends that a law in favour of the same should be declared invalid.
2.2. Whether the state is adopting the culture of transplant tourism?

K. It is established that the State of Neelambhari is renowned for its health sector and the state
offers the most advanced medical facility among the entire country. Excellent expertise and
affordability are some among the hallmarks of the health sector of Nelaambhari. This very
16
Case No 1725/2008; UNODC Human Trafficking Case Law Database, www.unodc.org/cld

factor invited global attention and every year the state marked a substantial increase in number
of overseas visitors. Health sector is the foremost revenue source of the state and the state is
promoting health tourism to a great extent. On daily basis visitors from numerous countries
are visiting the state of Nelaambhari for their various health needs.
L. The Union contends that the State has a hidden agenda in commercialising organ
transplantation and that it seeks to increase the revenue generated from the health sector. It is
further contended that such commercialisation is an attempt made by the State in lieu of
promoting the health tourism to new heights.
M. The preamble of the 2010 WHO Guiding Principles on Human Cell, Tissue and Organ
Transplantation indicates that “the growing ease of international communication and travel has
led many patients to travel abroad to medical centres that advertise their ability to perform
transplants and to supply donor organs for a single, inclusive charge.”
N. The World Health Assembly Resolution 57.18 on human organ and tissue transplantation of
22 May 2004, seeks to address “transplant tourism”, urging states to take measures to protect
the poorest and vulnerable groups from this phenomenon.
It defines Transplant Tourism as:
“Travel for transplantation becomes transplant tourism if it involves organ trafficking and/or
transplant commercialism or commercialisation of resources (organs, professionals and
transplant centres) devoted to providing transplants.”
O. It is established that the State of Neelambhari is a sought out destination for organ
transplantation. The Union contends that the State by adding payment to organ donation has
already commercialised organ donation. Having the state of the art facilities in place and
already a big market for health tourism, the resources i.e. the medical practitioners and the
transplant centres were already commercialised. Thus the State, by adding the concept of
payment has added fuel to the fire and thereby expanded the horizons for health tourism and
revenue generation. The Union further contends that the State in its attempt to attract patients
from outside the country has flamboyantly undermined the country’s ability to provide
transplant services for its own population as now, as much of the focus will be only
concentrated on foreign patients and serving their needs.

P. Thus the Union contends that for the benefit of the society at large and to safeguard the citizens
from exploitation, and prioritising the needs of our own citizens, the provisions of the Act
should be held invalid.

COMMUNITY?
3.1. Whether the customary practices of the Adhisangh community are valid and therefore
protected under Article 25?
A. It is established that Adhisangh is a religious minority existing in Adhibhoomi, a province in
the State of Neelambhari. They are the followers of Brahmasmi religion, which means “god
exists in ourselves and the human body is a sanctum where the god lives.” This community
neither believes or intends to follow modern medicine and have their own treatment methods
called Ahamveda, which uses medicinal plants and their extracts for treatment.
B. The principle of Ahamveda calls upon the physician to treat the patient as a whole:
“dividho jayate vyadih, sariro manasasthatha, parasparaz tavorjanma, nirvadvam
nopalahhyate.”
This means Ahamveda treats man as a whole body, including the mind and what is beyond
the mind.
C. Religious tolerance and equal treatment of all religious groups are essential parts of
secularism. It means respect for all faiths and religions. The State does not identify itself with
any particular religion. Brihatha being a secular state, gives all the individuals the freedom to
practice any preferred religion as such and all religious groups enjoy the same constitutional
protection without any favour or discrimination.
D. It is contended by the Union that the practices followed by the Adhisangh religion are part
and parcel of their religious customs.
E. According to Holland, “custom is a generally observed course of conduct.” Custom”, says
Austin, “is a rule of conduct which the governed observed spontaneously and not in
pursuance of law set by a political superior.” According to Keeton, “Customary law may be
defined as those rules of human action established by usage and regarded as legally binding
by those to whom the rules are applicable, which are adopted by the courts and applied as

source of law, because they are generally followed by the political society as a whole, or by
some part of it.”
In the case of Subramanian Chettiar v. Kumarappa Chettiar,17 custom has been defined
as:
“A particular rule which has existed from the time immemorial and has obtained the force of
law in a particular locality.”
In Hur Prasad v. Sheo Dayal18, custom has been defined as:
“Rule which in a particular family or in a particular district or in a particular sect, class or
tribe, has from long usage obtained the force of law.”
F. Essentials of a valid custom can, broadly, be classified into – Formative Essentials and
Operative Essentials. Antiquity, Uniformity, Continuity etc. are the essential formative
elements of a valid custom. Reasonable, should not be opposed to morality, public policy and
express enactments of legislature are operative elements.
G. The present scenario, the fact that the traditional rituals were performed when any native of
the Adhisangh Community dies shows that it is both antique and continuous.
In the case of Mahamaya v. Haridas,19 it was observed that:
“A custom is unreasonable if it is injurious to the multitude and prejudicial to the
commonwealth.”
Thereby this custom only being of giving proper funeral to the dead with special rituals
cannot be treated as injurious to the society and therefore is reasonable in nature. The custom
in question is in line of paying respect to the dead and Article 21 itself provides for giving
the body a decent burial after death as a strict duty. There is no law in force in the Union of
Brihatha which takes away the right of decent burial or which restricts any citizen to give a
decent burial. Therefore this custom is neither opposed to morality, public policy, or any
enactment in place and thereby is valid.
H. It is contended that in this regard the religious belief of the Adhisangh community is that “the
body of the deceased is a temple where once god lived and it is the duty of the living ones to
send the body back to the supreme abode of god.” It is further contended that it is a religious
17
AIR 1995 Mad 144
18
26 W.R 55 (P.C.)
19
I.L.R 42 Cal. 455 at p. 475

practice of this community that when any native of the community died they performed a
special ritualistic cremation paying their respect to the body.
I. In the case of HRE Madras v. Sri Lakshmindra,20 while defining religion stated:
“Religion is the belief which binds spiritual nature of men to super-natural being. It includes
worship, belief, faith, devotion etc. and extends to rituals. Religious right is the right of a
person believing in a particular faith to practice it, preach it and profess it.”
The court further expanding the scope of freedom of religion observed:
“Article 25(1) not only protects the freedom of religious opinion, but it also protects acts
done in pursuance of religion. Religious practices are reflective of matters concerning
religion and if religion is to be venerated, then the practices annexed thereto are equally
respectable and have to be complied with.”
J. In the case of Bijoe Emmanuel v. State of Kerala,21 the court observed:
“If a belief is genuinely and conscientiously held it attracts the provisions of Article 25 of the
Indian Constitution”.
In the case of Madhu v. Kuttan,22 the court observed that:
“A community can claim rights regarding performance of last rites of the dead in accordance
with established faith and belief.”
The union thereby contends that both, the religious belief and the religious practices are
protected under Article 25.
K. In the case of Vareed Porinichukutty v. State of Kerala,23 the court observed:
“Practices which are regarded by the community as part of its religion are also matters of
religion and right to bury or cremate dead bodies in a particular manner with particular rites
and ceremonies is part and parcel of the practice”
In the case of Krishnadas C. v. State of Kerala,24 the court observed:
“Rituals which are performed after the death of a person for the purpose of attainment of
salvation, are practices which can be held to be a part of religion and is entitled to protection
under Article 25.”
20
AIR 1954 SC 282,290
21
AIR 1987 SC 748 at 755
22
(1993) 2 KLT 1067
23
1971 KLT 204
24
2015 (4) KLT SN 109

In the case of Marimuthu v. State,25 the court observed:

Every human being is entitled for decent disposal of his body after his death in accordance
with the appropriate culture and tradition”.
L. The Union hereby contends that in accordance with the following precedents, the practice of
the Adhisangh Community is protected under Art. 25 of the Constitution of Brihatha. The
Union further contends that the organ removal of Sami is in strict violation of the set
principles of the Adhisangh Community. As a box of apples will remain incomplete without
any apples inside it similarly the body is incomplete without its organs. The religious practice
of the Adhisangh community is transfixed on the matter that the body has to be sent back to
the Supreme Abode of God intact, but the same has been tendered impossible due to the act
of the doctor.
3.2. Whether removal of organs from dead body without consent violates article 21?
M. In the case of Mujeeb Bhai v. State of U.P,26 the court observed:
“We thus find that the word ‘person’ under Article 21, would include a dead person in a
limited sense and that his rights to life which includes his right to live with human dignity, to
have an extended meaning to treat his dead body with respect, which he would have deserved,
had he been alive subject to his tradition, culture and religion which he professed.”
Thus the Union contends that a dead person also comes within the gambit of Art. 25 of the
Constitution of Brihatha.
N. The Supreme Court in the case of Patmanand Katra v. Union of India27, observed:
“The right to dignity 5and fair treatment under Article 21 of the constitution is not only
available to a living man but also his body after his death”.
In S. Sethuraja v. Chief Secretary, Govt. of Tamil Nadu,28 the court observed:
“Human dignity (if not more) with which a living human being is expected to be treated,
should also be extended to a person, who is dead and the right to accord a decent burial or
cremation to the dead body of a person, should be taken to be a part of the right to such
human dignity.”
25
Criminal Appeal Nos. 618/1995 and 620/1995
26
Civil Misc. W.P No. 38985 of 2004
27
(1995) 3 SCC 248
28
(2007) 5 MLJ 404

The Union therefore contends that the body of the dead should be treated with dignity. The
removal of organs from a dead person against his former will or based on the consent of
somebody who brought the person to the hospital is completely in violation of the rights
provided to a dead body.
O. According to Justice Bhagwati, ”Article 21 embodies a constitutional value of supreme
importance in a democratic society.” 29
Jutice Iyer has characterised Article 21 as “the procedural magna carta protective of life and
liberty.”30
In the case of Unnikrishnan v. State of A.P,31 the Supreme Court asserted that:
“Article 21 is the Heart of the Fundamental Rights.”
P. From all these precedents, one can come to a common conclusion that Article 21 is one of
the prime torch bearers of Part III of the constitution and that no duty imposed upon any
person can justify a violation of the same. Being the protector of life and liberty when alive
and dignity when dead, this provision holds the light to humanity.
3.3. Whether the doctor is justified in removing the organ of Sami without following due
procedure?
Q. It is established that the Act in question has laid down certain guidelines which have to be
followed for organ transplantation. The Union contends that none of the procedures
prescribed under the same were performed by the Doctor.
R. Section 3(i) of the Act in question imposes an obligation on the medical practitioner to
ascertain the fact from the patient who is admitted or his near relative that whether he had
consented for being an organ donor.
Section 3(ii) talks about informing the patient or near relative about an available option for
organ transplantation and that they could accept or deny the same.
The Union contends that the Sami being dead was in no position to give consent and no such
near relative of Sami was contacted to ask for the same. It is established that Sami had given
no prior consent in this regard nor any of his relative has been present on the scene and
provided with the same. Thus there is a clear violation of Sections 3(i) and 3(ii) by the doctor.
29
Francis Coralie v. U.T of Delhi; AIR 1981 SC 746,752
30
Sadhanatham v. Arunachalam; AIR 1980 SC 856
31
AIR 1993 SC 2178

S. Section 3(iii) puts on the Hospital an obligation to inform in writing to the Human Organ
Centre for Removal, Storage or Transplantation of human organs or tissues of the
identification of a donor. The same was not performed by the Hospital.
T. Section 3(2) talks about when a person in lawful possession of the body may give consent for
organ transplantation. This is only possible when the donor, in writing, in presence of two or
more witnesses authorised organ donation after his death.
The Union contends that no such authorisation was made and no such executed document is
in existence. Thus even if the State contends that the two youths are in lawful possession of
the body and thereby their consent is valid, they are outside the scope of this provision as
there was no prior authorisation. The same has been established earlier.
U. In the case of S.K. Srivastava v. Deputy Registrar, University of Allahabad,32 the court
observed:
“It is also well settled in law that if any statute provides a particular thing to be taken in a
particular manner, it is to be done in that manner alone, or not at all, and if it is not done in
accordance with the provisions of a statute, the action taken becomes unsustainable.”
Thus the Union contends that both the Hospital and the Doctor had failed to perform their
obligations with respect to the provisions of the Act and thus the entire act of organ removal
of Sami is in violation of the Act in question.
3.4. Whether the consent obtained by the doctor is a valid consent?
V. Sec. 3(i) & (ii) of the Act in question states:
(i) to ascertain from the person admitted to the Intensive Care Unit or from his near
relative that such person had authorised at any time before his death the removal of
any human organ or tissue or both of his body under sub-section (2), then the hospital
shall proceed to obtain the documentation for such authorisation;
(ii) where no such authority as referred to in sub-section (2) was made by such person, to
make aware to that person or near relative for option to authorise or decline for
donation of human organs or tissues or both;
W. It is contended that Sami never gave his consent before his death for any organ donation as
this is something against his religious belief. The only option left is the consent of his near
relatives. However, here an opportunity wasn’t given to any near relatives to give their
32
AIR 1998 All 101 at 106

consent as the Doctors took the consent of the educated youth members of the Adhisangh
community who bought him to the hospital. They however aren’t the near relatives of Sami
but are just the members of the community. There is a clear difference between being a
relative and a member of a community.
Further Section 3 (2) of the Act in question reads:
“If any donor had, in writing and in the presence of two or more witnesses (at least one of
whom is a near relative of such person), unequivocally authorised at any time before his
death, the removal of any human organ of his body, after his death, for therapeutic
purposes, the person lawfully in possession of the dead body of the donor shall, unless he
has any reason to believe that the donor had subsequently revoked the authority aforesaid,
grant to a registered medical practitioner all reasonable facilities for the removal, for
therapeutic purposes, of that 2[human organ or tissue or both] from the dead body of the
donor.”
X. The Union contends that no such document was executed by Sami in light of his religious
beliefs. Sami has never authorised for his organs to be donated for therapeutic purposes. Thus
the 2 youths accompanying him, in no possible situation could be treated as people in lawful
possession of the body after his death and thereby give valid consent.
Y. Thus, it is contended that the consent obtained is invalid and not in accordance with the
provisions of law as prescribed.
3.5. Whether there existed an emergency for the kidney transplantation?
Z. End-stage renal disease, also called end-stage kidney disease, occurs when chronic kidney
disease causes the gradual loss of kidney function that reaches an advanced state. In end-
stage renal disease, kidneys are no longer able to work as they should to meet the body's
needs. Kidneys filter wastes and excess fluids from the blood, which are then excreted in the
urine. When kidneys lose their filtering capabilities, dangerous levels of fluid, electrolytes
and wastes build up in the body. Dialysis does some of the work of your kidneys when your
kidneys can't do it themselves. This includes removing extra fluids and waste products from

your blood, restoring electrolyte levels, and helping control your blood pressure. Dialysis
options include peritoneal dialysis and hemo-dialysis.33
AA. If both kidneys have failed, one will need to have dialysis treatments for whole life unless
they are able to get a kidney transplant. Life expectancy on dialysis can vary depending on
your other medical conditions and how well you follow your treatment plan. Average life
expectancy on dialysis is 5-10 years, however, many patients have lived well on dialysis for
20 or even 30 years.34
BB. Thereby the Union contends that the very girl of five years could have easily survived on
dialysis for a very long time in the future. Allocation of deceased donation should occur
according to the principles of justice (a fair opportunity for everyone in need of an organ
transplant) and utility (each organ should be transplanted into a recipient in whom it will
survive the longest). It should be noted that it is a medically established fact that a human
kidney after death can survive for 72 hours and thus even if Sami’s kidney was a potential
match, there was adequate time in hand to wait and ascertain consent in proper format,
providing dialysis during that time.
CC. The child could have survived on dialysis and the doctors instead of advising the same and
acting in accordance to the Act in question, they did a complete opposite and chiselled the
body of Sami, took his kidney and transplanted the same to the 5 year old girl. The proper
medical recourse of dialysis in a kidney failure case wasn’t taken.
DD. Thus the Union contends that there was no emergency in place and the act of the Doctor is
not justified.
3.6. Whether the doctor is criminally liable?
EE.The Union has already established that the actions of the doctor are not in accordance with
the provisions of the Act in question, and thus is nothing more than an act performed on sole
discretion.
33
https://www.mayoclinic.org/diseases-conditions/end-stage-renal-disease/diagnosis-treatment/drc-20354538
34
https://www.kidney.org/atoz/content/dialysisinfo

FF. Section 297 of the Briharthian Penal Code reads: Tresspassing on burial places etc.
“Whoever, wounds the feelings of any person, or of insulting the religion of any person, or
with the knowledge that the feelings of any person are likely to be wounded, or that the
religion of any person is likely to be insulted thereby, commits any trespass in any place of
worship or on any place of sepulchre, or any place set apart from the performance of funeral
rites or as a depository for the remains of the dead, or offers any indignity to any human
corpse, or causes disturbance to any persons assembled for the performance of funeral
ceremonies, shall be punished with imprisonment of either description for a term which may
extend to one year, or with fine, or with both.”
The Union contends that the act of the doctor of removing an organ form the human corpse,
on unreasonable grounds is an act which violates the dignity of a dead body.
GG. In the case of Hajee Mohammad Ghouse (in re:),35 the court observed:
“The act of the accused of stopping the funeral march due to which the body had to be kept
down on the ground at the gate of the graveyard is an act which offers indignity to the human
corpse.”
In S. Sethuraja v. Chief Secretary, Govt. of Tamil Nadu,36 the court observed:
“Human dignity (if not more) with which a living human being is expected to be treated,
should also be extended to a person, who is dead and the right to accord a decent burial or
cremation to the dead body of a person, should be taken to be a part of the right to such
human dignity.”
Therefore the Union contends that the act of the Doctor to remove the organ from the dead
body of Sami is an action which affects the dignity of the corpse and therefore is an offence
under Sec. 297 of the Brihathain Penal Code37.
HH. It is established that the doctor who performed the Transplantation of Sami’s Kidney,
pursued the same in light of the powers enshrined upon him by the Act in question. It should
be noted that the Act only calls for voluntary donations. But in this present case there was no
donation but removal of an organ directly. The very law which was to be used for encouraging
35
(1903) 1 Weir 287.
36
(2007) 5 MLJ 404.
37
In pari materia to Sec. 297 of Indian Penal Code.

organ donations is being used to encourage involuntary organ removals and the perpetrators
of the same are hiding behind the shield formed by the flexible provisions of this Act.
II. The Union contends that not only does the Act in question promote involuntary organ
removal on false pretexts but also entices the population to come forward and donate organs
for money. The religious minorities which come from poor backgrounds are directly prone
to the State’s attempt to exploit people in the name of money which may solve the material
needs but destroy the religious principles and customs established by their forefathers.
JJ. It is a fundamental belief of many religions that the body after death has to be a part of the
Judgement Day. This is the day wherein it is decided that the body goes to the Hell or the
Heaven. It a common belief among the Roman Catholics that a body devoid of its parts will
be in the same state when it reaches the gates of Judgement day. Further the Islam religion
also has a similar belief. Among many tribes in the North-East of Brihatha i.e. the Nyishi,
Bhutia, Kuki etc., the belief is that a person who dies devoid of an organ or any other part of
the body, takes rebirth in the same form. Such religious beliefs should be looked into and
interests of these communities should also be kept in mind while removing any organ from
a body.
KK. The Union further contends, that the manner in which the organ transplantation of Sami
was handled and the State coming forward to defend the same can be directly attributed to
the fact that all dead bodies are now open for exploitation and organ removals, and that the
State will come forward to protect any such actions rather than accepting the illegal actions
and punishing the perpetrators.
LL. Today it was the rights of the Adhisangh community which has been violated, tomorrow it
may be some other religious minority in its place. The Union further states that let alone
religious minorities, tomorrow it can be anyone lying dead in a hospital, irrespective of any
religion and the organs may be removed. The rights of the dead are going unnoticed herein.
If the dead bodies are being opened up and their organs are removed, where is the right to
dignity enshrined upon the dead fulfilled. The dead are to be treated with the same respect as
if they are alive, but the exact opposite has happened. The action of the State coming forward
herein in support of the removal of organs from the dead body with an improper consent
sends a message that the State is in favour of the same and also releases a proclamation that
such acts have the backing of the state.

MM. The Union further contends that the State is standing in favour of the principles of the Act
in question and that the Act is constitutional in nature. So when the act of the doctor is
completely in violation of the State enacted law, then why is the State standing up to defend
the same. Why is it that the State has not come forward and accept the mistake or wrongdoing
of the Doctor and set an example for the future code of conduct of other doctors or has it been
in favour of Doctors performing organ transplants illegally all along. Why is it that the State
is playing on two fronts and not coming up clean in this regard.

ACT, 1994?
4.1 Whether the provisions of the Act in question are in violation of THOA, 1994?
A. It is established that the objective of the State promulgated Act are to cure the rigidity of the
existing laws regarding organ transplantation and to create awareness among the people about
the need for organ donation. The Union therefore contends that in light of the provisions
incorporated the sole objective of the State is commercialisation of organ donations.
B. Sec. 2(j) this very Act in question is states:
“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.
The very word payments shows and states that the legislation is encouraging commercial
dealings of human organs.
C. Whereas Sec. 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.

D. The Union therefore contends that the State Law incorporates the concept of payment
whereas the Union law is against it. The same was held in the case of Arup Kumar Das v.
State of Orissa38, wherein the court observed:
“What have been prohibited under the statute is the commercial dealings in the human organs
and prevention and exploitation of humans for financial benefits. The authorisation must be
prevented and commercialisation dealing in human organ is prohibited.”
Further in the case of Jeevan Kuman Raut v. CBI,39 the court observed:
“THOA was enacted to provide for the regulation of removal, storage and transplantation of
human organs for therapeutic purposes and for the prevention of commercial dealings in
human organs. THIOA is a Special Act. Having regard to the importance of the subject only,
enactment of the said regulatory statute was imperative.”
E. The Union therefore contends that the Courts have also accepted the validity of THOA and
the need for its application. The aforesaid precedents are against the very principle of
commercialisation of Organ Donation and thus the same is in contravention to THOA,1994.
4.2. Whether the union law will prevail over the state law in case of repugnancy?
F. It is established that the THOA,1994 was enacted by the Parliament following the legislative
powers provided to it under Article 252 of the Constitution of Brihatha which reads:
252. Power of Parliament to legislate for two or more States by consent and adoption of such
legislation by any other State
(1) If it appears to the Legislatures of two or more States to be desirable that any of the
matters with respect to which Parliament has no power to make laws for the States except as
provided in Articles 249 and 250 should be regulated in such States by Parliament by law,
and if resolutions to that effect are passed by all the House of the Legislatures of those States,
it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and
any Act so passed shall apply to such States and to any other State by which it is adopted
afterwards by resolution passed in that behalf by the House or, where there are two Houses,
by each of the Houses of the Legislature of that State.
THOA was enacted by a resolution passed by the State Legislatures of Goa, Himachal
Pradesh and West Bengal and later adopted by the remaining States.
38
106 (2008) CLT 292.
39
SLP(Crl.) Nos. 1035-1036 of 2009.

G. Article 254 of the Constitution of Brihatha reads:

254. Inconsistency between laws made by Parliament and laws made by the Legislatures of
State.
(1)If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in the Concurrent List, then,
subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before
or after the law made by the Legislature of such State, or, as the case may be, the existing
law, shall prevail and the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void.
H. The Union contends that the exact words used herein are “law made by Parliament which the
Parliament is competent to enact”. Under Article 252, the State legislatures give the
Parliament the authority to enact the laws, which makes it a competent legislative body to fit
into the gambit of Article 254. The same was reiterated in the following case.
I. In the case of R.M.D.C v. State of Mysore,40 the court observed:
“Any act of the State Legislature will be subject to the rule of repugnancy, though Article
254, in terms, may not supply the same. If any State Act relating to the same matter, occupying
the same field as the law made by the Parliament under clause (1), is repugnant to the latter,
it will be rendered inoperative to the extent of the repugnancy.”
J. in the case of Vijay Kumar Sharma v. State of Karnataka41, Justice K. Ramasywamy
opined that:
“In case of repugnancy or inconsistency between the State law and the Union law relating to
the same matter, the Union law shall prevail over the State law.”
K. It is contended that here, too, there is an inconsistency between the State law in question and
the Union law, i.e. THOA. Where the State law promotes commercialisation of organ
donation, the Central law is against the very commercialisation of organ donation. Thus in
such as case the Union law shall prevail.
L. Thus the Union finally contends that the nature of commercialisation of the Act in question,
through its provisons, makes it a bad law for the country. The State action of coming in aid
40
AIR 1962 SC 594.
41
AIR 1990 SC 2072.

and defence of the Doctors further gratify the issue and shows a shady conduct on behalf the
State. It is further contended that the provisions with respect to commercialisation should be
held void and the Act of the Doctor to be considered against the principles of law.
M. The Union rests its case.

PRAYER
In light of the issues raised and arguments advanced, the counsel on behalf of the Petitioners
humbly prays before this Hon’ble Court to kindly uphold the Petition and declare that:-
1. The provisions of the Act in question are in contravention to the provisions of THOA,1994.
2. The Respondent has transgressed the power enshrined to it by the Constitution of Brihatha
by passing the Act in question.
3. The Act in question, through its provisions, is unconstitutional.
4. The doctor did not follow due procedure while performing the organ transplantation on
Sami.
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 Petitioners shall forever pray.
Respectfully Submitted
Sd/-
Counsel of the Petitioners

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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

O.P. No. ……(2019)

PETITION FILED UNDER ARTICLE 131 OF THE CONSTITUTION OF BRIHATHA

UNION OF BRITATHA ……Petitioner No. 1

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

MEMORIAL ON BEHALF OF PETITIONERS

Memorial for Petitioner 1

S. No. Topic Page No.

5. Statement of Issues Raised 12

Memorial for Petitioner 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 Petitioner 3

• The Constitution of India, 1950.

• Arup Kumar Das v. State of Orissa; 106 (2008) CLT 292.

Memorial for Petitioner 4

• S. Sethuraja v. Chief Secretary, Govt. of Tamil Nadu; (2007) 5 MLJ 404

Memorial for Petitioner 5

Memorial for Petitioner 6

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 Petitioner 7

Memorial for Petitioner 8

BACKGDROUND OF THE FACTS

Memorial for Petitioner 9

THE ADHISANGHS COMMUNITY

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

PETITION FILED BY NAYADEEP

Memorial for Petitioner 10

MATTER BEFORE THE HON’BLE SUPREME COURT OF BRIHATHA

Memorial for Petitioner 11

STATEMENT OF ISSUES RAISED

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

ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF THE ACT IN QUESTION

ISSUE 3: WHETHER THE PROVISIONS OF THE ACT IN QUESTION VIOLATES THE

ISSUE 4: WHETHER THE PROVISIONS OF THE ACT IN QUESTION ARE

Memorial for Petitioner 12

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

ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF HE ACT IN QUESTION

Memorial for Petitioner 13

It is established that Adhisangh is a religious minority existing in Adhibhoomi, a province in the

ISSUE 4: WHETHER THE PROVISIONS OF THE ACT IN QUESTION ARE

Memorial for Petitioner 14

Memorial for Petitioner 15

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

I.1. Whether the Petition filed by Petitioner No. 2 & 3 is a PIL?

Memorial for Petitioner 16

Memorial for Petitioner 17

Memorial for Petitioner 18

Memorial for Petitioner 19

Memorial for Petitioner 20

Memorial for Petitioner 21

ISSUE 2: WHETHER THE FLEXIBLE PROVISIONS OF THE ACT IN QUESTION