DRAFT FOR THE

This is Counsel #1 for the Respondents in this case.

The Constitutional validity of the particular Act has been challenged and have
been bifurcated in totality of two grounds for consideration before this hon’ble
bench for deciding the instant case :

(i) Whether the provisions of this particular Act is Competent,

Constitutionally provided for and if there is an obligation to have
enacted this law?

(ii) Whether the provisions of this particular Act are bad laws that
frustrates the religious freedom of the religious minorities?

The Act has been CAREFULLY, CONSCIOUSLY AND SUFFICIENTLY

DRAFTED and brought into existence for many a reasons surrounding the poor
population of Organ donors.

The people are in need of organs for therapeutic purposes. And the need is
escalating on an unprecedented manner. Several reported death occurred among
patients due to organ failures.

The State of Neelambari is recognised as the HEALTH CAPITAL of Union of

Brihatha and a sought after destination for organ transplantation surgeries,
which faced a really difficult situation prior to the enactment of this Act.

The hands of the state health administration was really tied due to the shortage
of potential organ donors.

These are a few prominent reasons why this Act has been enacted in the first
place.

The Counsel shall now proceed with laying the road map for the arguments.
There are three prongs to the Argument.

1. How, the State of Neelambari is vested with Constitutional provisions to

draft and enact this Law.

2. How, the enacted law is a competent law in totality.

3. And finally how the State is obligated to enact and Promulgate such a law
whose objective is to preserve life.

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I. How, the State of Neelambari is vested with Constitutional

provisions to draft and enact this Law.

The Transplantation and Preservation of Organs and Tissues Act, is a local

legislation enacted by the State of Neelambari.

This particular Act is enacted with the sole objective to cure the rigidity
regarding the Organ Transplantation and to create more awareness among
people of the state of Neelambari about the need of Organ Donation.

The submission for this limb of argument will be that the State of Neelambari
has the power to legislate on this matter which is vested in it by the
Constitution and that this act does not violate any other laws or the
Constitution itself.

It is conferred so in the 6th entry into the State List of VIIth Schedule in the
Constitution which pertains to “Public health and sanitation; hospitals and
dispensaries.” Which clearly vests legislative powers on this matter within the
State Legislation.

Only the mere excision of such a power with regards to Public Health has been
done here by the State of Neelambari.

Organ Donation and Transplantation are for therapeutic purposes and is for the
furtherance of Public Health.
According to the Central Act itself. Sec. 2 cl. (n) defines “therapeutic
purposes”.

It means systematic treatment of any disease or the measures to improve

health according to any particular method or modality; and

Hence it is a humble plea that the hon’ble bench finds these submissions to be
sufficient for the particular issue at hand.

If the Bench is satisfied with the submissions above, the Counsel shall move
to the next limb of the issue.

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Given that the Laws of Union of Briharata is pari materia to that of India, it is
assumed that the Union of Briharata has its own Central Legislation on the
exact matter of Organ Donation which is The Transplantation of Human Organs
Act, 1994.

This brings us to the next limb of submissions.

II. How, the enacted law is a competent law in totality.

For this issue, the submissions shall state that how the contents of this Act is in
harmony with the Constitution and also includes a Clear comparison of the
provisions of the Central act and the Local Act.
According to the Central Act--Sec.2 cl. (f) “donor" means any person who is,

 Not less than eighteen years of age,

 Who voluntarily authorises the removal of any of his human organs
 For therapeutic purposes under sub-section (1) or sub-section (2) of
section 3;

According to the Local Act—Sec. 2 cl. (f) “donor” means any person who is,

 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.

The only tangible subjective difference we see here is the mere non-
existence of the term “Voluntarily”.

This is justified by Sec. 3 cl. 2 of the Local Act and assures the Bench and
the citizens that donation can only be done “voluntarily”.

Which, does not only require the donor to consent to the donation, but
the consent of two other witnesses of which… at least one of them is a
near relative.

This provides for the nature of the organ donation to be a “Voluntary Act”
more than sufficiently.

Proceeding to the next challenged provision;

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According to the Local Act—Sec. 2 cl. (j) “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.

This is an extra detail added to the Local Act when compared to the Central Act
and is a clear definition of how the act of organ donation is solely for therapeutic
reasons.

The only involvement of “Money” here is to cover for all the necessary
therapeutic purposes of the Donor and all such payments shall take place
through the Legal Duty vested with the Registered Medical Practitioner who
is lawfully required to report in writing to the Human Organ Removal Centre
about each Donation and Transplantation along with the details of the Donor and
the Recipient.
State of Punjab v. Ram Lubhaya Bagga, this Court has recognized that
provision of health facilities cannot be unlimited. The court held that it has
to be to the extent finance permits.

It is humbly submitted that the Law in force is Absolutely Competent and the
blame of mere non-compliance of law shall never be a ground to challenge the
Law as incompetent.

This is the basic functionality of Law. It is the only Logical view that, Non-
Compliance of Law does not indicate that the law is incompetent.

Non Compliance of Law Shall be met with the respective Penal Provisions.

The Counsel finally contents that this particular Act is a competent Law with
references to the above submissions.

If the Bench is satisfied with the submissions above, the Counsel shall move
to the Final limb of the issue.

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Finally, to seek complete solace in this matter, The Case of Paramananda

Katara v UoI, shall be submitted. It established in its Landmark Judgment that
Article 21 of the Constitution casts the obligation on the State to preserve life.

The Apex Court stated that “once life is lost, status quo ante cannot be
restored”

Further, such an obligation is also vested in Article 47 of the Constitution.

This supports the final limb of the argument wholly.

III. How the State is obligated to enact and Promulgate such a law
whose objective is to preserve life.

The enactment of this Act—as submitted in the beginning of the arguments,

Neelambari has been in a dire requirement of an Organ Donation Law and with
the excision of the vested powers in the provisions of the Constitution of Art 21
and Art 47, along with the 6th entry of the State List.

Recalling the Judgments of this Hon’ble Court in a plethora of cases, it clearly

establishes that Art. 21 is wholly inclusive of a Right to Health and a Right to
Health Care

In State of Punjab v. M.S. Chawla, it has been held that- the right to life guaranteed
under Article 21 includes within its ambit the right to health and medical care.

The Supreme Court in Vincent v. Union of India, emphasized that a healthy body is

the very foundation of all human activities.Art.47, a Directive Principle of State Policy
in this regard lays stress note on the improvement of public health and prohibition of
drugs injurious to health as one of the primary duties of the state.

In Sunil Batra v. Delhi Administration, the Supreme Court reiterated with the approval
the above observations and held that the “right to life” included the right to lead a
healthy life so as to enjoy all faculties of the human body in their prime conditions.

Bandhua Mukti Morcha v. Union of India, Characterizing Art. 21 as the heart of

fundamental rights

Finally, in Parmananda Katara  v. Union of India, It was stated that “no law or State
action can intervene to avoid/delay the discharge of the paramount obligation cast
upon members of the medical profession. The obligation being total, absolute and
paramount, laws of procedure whether in statute or otherwise which would interfere

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with the discharge of this obligation cannot be sustained and must, therefore, give
way.”

Keeping all the submissions in consideration, it is a humble plea that this Court
finds this Act to be in consonance of the Constitution and that the enactment of
this act is within the powers of the State Legislature as there is a constitutional
duty and obligation to provide for Health and Medical Care.

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