UILS INTRA MOOT COURT COMPETITION, 2016

Team Code: B-48

BEFORE THE HONBLE SUPREME COURT OF INDIANA

Under Article 136 of the

Constitution of Indiana,
Special Leave Petition No*****/2016

Concerended Doctors OF SLC Hospital and Medical Council of India

Petitioners
Versus

Union Territory of Chandipur and High Court on its own motion

Respondents

SUBMISSION TO THE HONBLE JUSTICE/JUSTICES

OF
THE HONBLE SUPREME COURT OF INDIANA

MEMORIAL ON BEHALF OF THE RESPONDENTS

UILS INTRA MOOT COURT COMPETITION, 2016

TABLE OF CONTENTS
INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

ISSUES RAISED

10

SUMMARY OF ARGUMENTS

11

ARGUMENTS ADVANCED

13

1. WHETHER ACTIVE EUTHANASIA SHOULD BE ALLOWED IN

13

CASES OF EMERGENCY OR OTHERWISE?

2. WHETHER CONVICTION UNDER 302, 379, 392 AND 395 r/w 21
SECTION 34 IS JUSTIFIED?
3. WHETHER SUMAN IS ENTITLED TO GET COMPENSATION BY 28
THE DOCTORS?
4. WHETHER THE HIGH COURT HAS INHERENT POWERS UNDER 30
THE CONSTITUTION TO ORDER MEDICAL COUNCIL OF INDIA
TO INITIATE DISCIPLINARY PROCEEDINGS AGAINST THE
DOCTORS WHILE DEALING WITH A CASE UNDER THE
CONTEMPT OF COURTS ACT, 1971?
PRAYER

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UILS INTRA MOOT COURT COMPETITION, 2016

INDEX OF AUTHORITIES
BOOKS REFERRED
Massey, I.P., Administrative Law, 5th Ed. 2003, Eastern Book Company, Lucknow.
Takwani, Thakker, C.K Lectures on Administrative Law, 3rd Ed. 2003, Eastern Book
Company, Lucknow.
Wade and Forsyth, Administrative Law, 9th Ed., 2004, Oxford University Press, Oxford.
Jain, M.P. and Jain, S.N.Principles of Administrative Law, 5th Ed. 2007 Wadhwa and Co.
Delhi.
D. Basu, Introduction to the Constitution of India (Wadhwa, Nagpur, 2008).
Dr. M.P. Jain, Indian Constitutional Law (Lexis Nexis, Butterworths, 2002).
Dr. V.N. Shukla, The Constitution of India (Eastern Book co., 2008 with supplement 2012)
Ratanlal and Dhirajlal: Criminal Procedure Code, 18th Ed, 2006, Wadhwa and Co. Nagpur.
S C Sarkar : The Law of Criminal Procedure, 2nd (Reprint), 2010, Dwivedi Law Agency,
Allahabad.
K N Chandrasekharan Pillai (ed): R V Kelkars Criminal Procedure, 5th Ed. 2008, Eastern
Book Company, Lucknow.
Woodroffe: Commentaries on Code of Criminal Procedure, 2 vols. 3rd Ed., 2009.
The Indian Penal Code, 1860 K.D. Gaur, 4th Ed., Universal Law Publishing Co. Pvt. Ltd,
2013.
Commentary on the Indian Penal Code, 1860 Batuk Lals, 1st Ed., Orient
Publishing Co., 2006-07, Reprint 2012.
Sarkars Commentary on the Indian Penal Code, 1860 S.C. Sarkar, Jain Book Depot,
2011.
The Indian Penal Code, 1860 Rattan Lal and Dhiraj Lal, Lexis Nexis Butterworths
Wadhwa, 32nd Ed., 2013.

UILS INTRA MOOT COURT COMPETITION, 2016

Text Book of Criminal Law Glanville Williams, 2nd Ed., Universal Law Publishing Pvt.
Ltd., Ed. 1978, Reprint 2009.
Russell on Crime J.W. Cecil Turner , 12th Edition, First Indian (1819), University Law
Publishing, Reprint 2001.
Indian Penal Code, 1860 S.N. Mishra, 17th ed. Central Law Publication Company, 2012.
Rattan Lal, Dhiraj Lal: Law of Evidence (1994) Wadhwa, Nagpur.
Avtar Singh, Principles of the Law of Evidence (2008) Central Law Agency, New Delhi.
Ameer Ali and Woodroffe- Law of Evidence, Butterworths 18th Ed. (2009).
Phipson and Elliot Manual of Law of evidence, Universal publishing, New Delhi, 2001.
DICTIONARIES
Blacks Law Dictionary (8th ed. 2004)
Barron's Law Dictionary (Barron's Legal Guides) 7th Edition
Collins Concise Dictionary & Thesaurus (3rd ed. 2003)
Merriam-Webster's Dictionary of Law
STATUTES REFERRED
Code of Criminal Procedure, 1973
Constitution of India
Contempt Of Courts Act, 1971
Code of Medical Ethics Regulations, 2002.
Indian Evidence Act, 1872
Indian Penal Code, 1860
Hindu marriage act, 1950
Hindu Adoptions and Maintenance Act. 1956.
The Medical Council Act, 1956.
Transplantation of human organs act, 1994

TABLE OF CASES
Airedale N.H.A. Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.)
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UILS INTRA MOOT COURT COMPETITION, 2016

Ajay Hasia v. Khalid Mujib Sehravardi and Ors., AIR 1981 SC 487
Anil Ritolla v. State of Bihar, [(2007) 10 SCC 110, 113 (SC)].
Aruna Ramchandra Shanbaug v. Union of India and Ors., (2011) 4 SCC 454
Balkrishna Das Agarwal v. Smt. Radha Devi And Ors., AIR 1989 All 133
Barkau v. State of Uttar Pradesh, 1993 All LJ 1110.
Chenna Jagadeeswar v. State of AP, 1988 Crl.L.J. 549
Common Cause (A Regd. Society) v. Union Of India And Others,
D. Sudharkar v. Panapu Sreenivasulu,
Delhi Development Authority v. Skipper Construction and Another, (1995) 3 SCC 507.
Delhi Judicial Service Association case, Supreme Court Bar Association case and Income
Tax Appellate Tribunal v. V.K. Agarwal,
DPP v. Lynch, 1975 AC 653.
Dr. Shashikant C. Patel v. Medical Council Of India And Anr.
Gian Kaur v. State of Punjab, 1996 (2) SCC 648
Hay v. Emperor, AIR 1925 Oudh 469
Indira Nehru Gandhi v. Raj Narain,AIR 1975 SC 2299
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
MadhuLimaye v. Maharashtra,
Maruti Shri PatiDubal v. State of Maharashtra, 1987 Crl. L.J. 743,
Mayur v. State of Gujarat, AIR 1983 SC 66.
Mehr Ilahi v. Emperor, 12 Cr LJ 485, 12 IC 93.,
Murray & Co. v. Ashok KR. Newatia and another, (2000) 2 SCC 367.
Nagendra Mohan Patnaik and Ors. v. The Government of A.P., 1997 (1) ALT 504
Nagindra Bal Mitra v. Sunil Chandra Ray, AIR 1960 SC 706.
Naini Tal Hotel Co. Ltd. v. Municipal Board, AIR 1946 All 502
Naresh Shridhar Mirajkar and Ors v. State Of Maharashtra and Anr,
P. Rathinam v. Union of India and Anr., (1994) 3 SCC 394
R v. Dudley and Stephens,
Rabinarayana Das v. State, (1992) CLJ 269, p271
Rafiq Ahmed @ Rafi vs State Of U.P,
Rustom Cavasjee Cooper v. Union of India, 1970 SCR (3) 530
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Sita Ram Sahu v. Smt. Lalpari Devi & others, (1982) 2 SCC 577.
State of Rajasthan v. Dhool Singh,
Sukhdeo Singh Sodhi v. Honble J.S. Teja Singh, AIR 1954 SC 186.
Venugopal and Ors v. State Of Karnataka

UILS INTRA MOOT COURT COMPETITION, 2016

STATEMENT OF JURISDICTION
The Doctors have challenged the decision of the High Court decided on 02.02.2016 by way
of appeal invoking Article 136 of the Constitution of Indiana. The Medical Council of
Indiana has also appealed against the judgment of High Court dated 26.02.2016 contending
that the High Court has no such inherent powers to direct the Medical Council to initiate
disciplinary proceedingsagainst a doctor.
Article 136 is reproduced as under:136. Special leave to appeal by the Supreme Court - (1) Notwithstanding anything
in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or
matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces.
Honble Supreme Court has clubbed both the appeals before a Constitution bench of five
judges. The respondents have accepted the jurisdiction and have argued likewise.

UILS INTRA MOOT COURT COMPETITION, 2016

STATEMENT OF FACTS
1. That Mohan was born on 08.06.1960 to Shekhar Kumar and Dipti Kumar who got
married under the Special Marriage Act, 1954. Post divorce by mutual consent, Dipti
returned to Belgium.
2. That Mohan had been put under the custody of Mr. Prakash, brother of Mr. Shekhar,
after his death due to kidney failure. The whole expenses of his studies were borne by
his uncle. Mohan later became an engineer by profession. When Mohan attained the
age of majority, he decided to donate both of his kidneys after his death to Mamta
Memorial Government Hospital, Chandipur.
3. That Mohan married Suman on 04.08.1985 under the Hindu Marriage Act, 1954.
Subsequently, due to tensions, they obtained a decree for judicial separation on
29.01.1995. When they were not able to continue cohabitation even after the
expiration of one year of judicial separation, Suman filed a case for divorce in the
Family Court on 26.03.1996.
4. That on 28.01.1998, Mohan met with a terrible accident and was taken to Sant Lal
Chaudhary Hospital, Chandipur. He went in coma as a result of it. The whole
expenses of his treatment came from his estate.
5. That since there was no improvement in Mohans condition till March 2012, Suman
on the request of the doctors, filed a petition in the High Court of Chandipur for
passive euthanasia. And on 03.04.2012, the High Court allowed the petition and the
doctors started the process for passive euthanasia.
6. That on 10.04.2012, a young girl named Meera was admitted to Sant Lal Chaudhary
Hospital. She had multiple organ failure and required an urgent kidney. There were
only 3 hours with the doctors for the kidney transplant. The doctors found a suitable
kidney but it would have taken 6 hours for the kidney. When the doctors did some
tests, they found that Mohans kidney would be a perfect match.
7. That Mohan had only one functioning kidney as he had already donated the other
kidney. The doctors knew that taking out the kidney would mean instant death of
Mohan. But to save Meeras life, a team of 7 doctors took out his kidney and
transplanted it into the young girl.
8. That the post-mortem report showed that Mohan had died because his kidney was
taken out.

UILS INTRA MOOT COURT COMPETITION, 2016

9. That Prakash registered an FIR against the doctors of Sant Lal Chaudhary Hospital,
Chandipur. The State of Chandipur brought prosecution against the doctors and all the
seven doctors were charged and convicted under section 302, 379, 392 and 395 read
with section 34 of the Indiana Penal Code, 1860 by the trial court. They were
sentenced to death which was however reduced to life imprisonment by High Court
on 02.02.2016 on appeal High Court also ordered compensation to Suman to be paid
by doctors U/s 357 and by Government U/s 357A of Rs. 20 lacs and 10 lacs
respectively. The Government of UT paid the compensation of Rs. 10 lacs to Suman
and sought to recover it from the doctors.
10. That the High Court suo moto instituted a case under the Contempt of Courts Act,
1971 against the doctors for disobeying its decision and ordered to pay Rs. 2000 each
on 26.02.2016. The High Court also ordered the Medical Council to initiate
disciplinary proceedings against them.

UILS INTRA MOOT COURT COMPETITION, 2016

ISSUES RAISED

1. WHETHER ACTIVE EUTHANASIA SHOULD BE ALLOWED IN CASES OF

EMERGENCY OR OTHERWISE?
2. WHETHER CONVICTION UNDER 302, 379, 392 AND 395 r/w SECTION 34 IS
JUSTIFIED?
3. WHETHER SUMAN IS ENTITLED TO COMPENSATION BY THE DOCTORS?
4. WHETHER THE HIGH COURT HAS INHERENT POWERS UNDER THE
CONSTITUTION TO ORDER MEDICAL COUNCIL OF INDIA TO INITIATE
DISCIPLINARY PROCEEDINGS AGAINST THE DOCTORS WHILE DEALING
WITH A CASE UNDER THE CONTEMPT OF COURTS ACT, 1971?

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UILS INTRA MOOT COURT COMPETITION, 2016

SUMMARY OF ARGUMENTS
1. WHETHER ACTIVE EUTHANASIA SHOULD BE ALLOWED IN CASES OF
EMERGENCY OR OTHERWISE?
It is humbly submitted that active euthanasia should not be allowed in cases of emergency
or otherwise. It is the most humble submission that right to die has been time and again
held to be excluded from article 21 that is right to life and personal liberty. The right to
life stands on different footing from other rights as all other rights are derivable from the
right to live and hence, the negative aspect of the right to live would mean the end or
extinction of the positive aspect. It is a humble submission that the legislations of the
country have well recognized the violations to human body with respect to death. A
person voluntarily wanting to end his life is not spared by the law. Further, the defence of
necessity, in no case, can extend to murder. It is submitted that we cannot eliminate all
suffering, we should not seek to eliminate it by inflicting death, and thus, euthanasia is
unnecessary for the relief of pain. Further, allowing active euthanasia in cases of
emergency will give doctors wide opportunities to abuse their power. Allowing active
euthanasia in cases of emergency implies that the doctors have to act on their own accord,
and a detailed opinion of the Courts might not be possible as the emergency demands
quick action usually. By allowing doctors for active euthanasia in emergency cases is
downright violation of article 14 of the Constitution. It is humbly submitted that
legalizing active euthanasia will have the effect of amending sections 299, 300, 302, 304,
306 and 309 of the IPC. Hence, by allowing active euthanasia in emergency, the Court
will encroach upon the functions of legislative bodies, and hence violate the principle of
separation of powers which is a part of basic structure of the Constitution of Indiana.
2. WHETHER CONVICTION UNDER 302, 379, 392 AND 395 r/w SECTION 34 IS
JUSTIFIED?
It is humbly submitted that conviction of the doctors is justified. The doctors are guilty
for murder under section 302 of the Code. As stated in the facts, the death of Mohan was
caused due to taking out the kidneys. Also, the facts themselves state that the doctors
knew that the act would mean instant death of Mohan. Mohan died due to the act of
taking out his kidney by the doctors. It is humbly submitted that post mortem report of
Mohans death is a significant piece of evidence in this case. Also, necessity can never be
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UILS INTRA MOOT COURT COMPETITION, 2016

a defence for murder. Further, the doctors are guilty of theft, robbery and dacoity.
Dispossessing one of a movable property without his consent and with a dishonest
intention is theft. The act of doctors of taking away the kidney very conveniently falls
within the definitions. Hence, it is humbly stated that the conviction of doctors on
grounds of murder, theft and dacoity is justified.
3. WHETHER SUMAN IS ENTITLED TO COMPENSATION BY THE DOCTORS?
It is humbly stated that Suman is entitled to receive compensation by the doctors. Suman
is a victim within the meaning of Section 357 of Cr.P.C. Suman has suffered injury by
the acts of the doctors. She has not just been exposed to acute mental trauma and
emotional suffering, but has also been wrongfully denied the care and protection her
husband had to offer for her. While nothing can really compensate for the loss incurred by
her, a monetary compensation becomes necessary and rightful keeping in view the gravity
of wrong done. Further, the legal status of the marriage does not end by judicial
separation. It means separation from bed and board. It is different from divorce,which
puts the marriage to an end. Hence, Suman is entitled to get compensation from the
doctors legally and morally.
4. WHETHER THE HIGH COURT HAS INHERENT POWERS UNDER THE
CONSTITUTION TO ORDER MEDICAL COUNCIL OF INDIA TO INITIATE
DISCIPLINARY PROCEEDINGS AGAINST THE DOCTORS WHILE DEALING
WITH A CASE UNDER THE CONTEMPT OF COURTS ACT, 1971?
It is most humbly submitted that the High Court has inherent powers under the
Constitution to order Medical Council of India to initiate disciplinary proceedings against
the doctors while dealing with a case under the Contempt of Courts Act, 1971. The
Honble High Court has exercised its inherent powers vested in it by the Constitution of
India in doing so. By ordering the Medical Council of India, the High Court has not
abrogated or exceeded any of its powers so as to render the order void.. Moreover, it is
not for the first time that the Court has directed the disciplinary Committee to conduct
some action. It has been a commonly accepted practice. It is rather in public interest that
disciplinary proceedings against these doctors take place. Hence, High Court has inherent
powers under the Constitution to order Medical Council of India to initiate disciplinary
proceedings against the doctors.

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ARGUMENTS ADVANCED
1. WHETHER ACTIVE EUTHANASIA SHOULD BE ALLOWED IN CASES OF
EMERGENCY OR OTHERWISE?
1. It is humbly submitted that active euthanasia should not be allowed in cases of
emergency or otherwise.
1.1 THAT THERE IS NO RIGHT TO DIE UNDER ARTICLE 21 OF
CONSTITUTION OF INDIANA.
2. It is the most humble submission that right to die has been time and again held to be
excluded from article 21 that is right to life and personal liberty.1
3. Sanctity of life, as we will see, has been understood historically as excluding freedom
of choice in the self- infliction of death and certainly in the involvement of others in
carrying out that choice. At the very least, no new consensus has emerged in society
opposing the right of the state to regulate the involvement of others in exercising
power over individuals ending their lives.2
4. It has been contended that as all the fundamental rights are to be read together3, that
what is true of one fundamental right is also true of another fundamental right. It
cannot be seriously disputed that fundamental rights have their positive as well as
negative aspects. For example, freedom of speech and expression includes freedom
not to speak. It was, therefore, stated that logically it must follow that the right to live
will include right not to live, i.e., right to die or to terminate one's life.
5. However, the right to life stands on a different footing from other rights as all other
rights are derivable from the right to live. It is a humble submission that the negative
aspect of the right to live would mean the end or extinction of the positive aspect, and
so, it is not the suspension as such of the right as is in the case of 'silence' or 'nonassociation' and 'no movement'.
6. When a man commits suicide he has to undertake certain positive overt acts and the
genesis of those acts cannot be traced to, or be included within the protection of the
'right to life' under Article 21. The significant aspect of 'sanctity of life' is also not to
be overlooked. Article 21 is a provision guaranteeing protection of life and personal
liberty and by no stretch of imagination can extinction of life' be read to be included
1

Maruti Shri Pati Dubal vs. State of Maharashtra, 1987 Crl. L.J. 743, Chenna Jagadeeswar vs. State of AP 1988
Crl.L.J. 549 , P. Rathinam v. Union of India and Anr. (1994) 3 SCC 394
2
Gian Kaur v. State of Punjab 1996 (2) SCC 648
3
Rustom Cavasjee Cooper v. Union Of India 1970 SCR (3) 530

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in protection of life'. To give meaning and content to the word 'life' in Article 21, it
has been construed as life with human dignity. Any aspect of life which makes it
dignified may be read into it but not that which extinguishes it and is, therefore,
inconsistent with the continued existence of life resulting in effacing the right itself.
The right to die', if any, is inherently inconsistent with the right to life' as is death'
with life'.
7. In a case relating to withdrawal of artificial measures for continuance of life by a
physician, it was held that in the context of existence in the persistent vegetative state
of no benefit to the patient, the principle of sanctity of life, which it is the concern of
the State, was stated to be not an absolute one. In such cases also, the existing crucial
distinction between cases in which a physician decides not to provide, or to continue
to provide, for his patient, treatment or care which could or might prolong his life, and
those in which he decides, for example, by administering a lethal drug, actively to
bring his patient's life to an end, was indicated and it was then stated as under :"..........But it is not lawful for a doctor to administer a drug to his patient to bring
about his death, even though that course is prompted by a humanitarian desire to end
his suffering, however great that suffering may be.4
8. Therefore, no matter how terminally ill a person is, he does not have right to eliminate
his suffering by the extinction of his own life. Thus, it is submitted that active
euthanasia cannot be allowed.
1.2 THAT ACTIVE EUTHANSIA DOES NOT FALL UNDER THE EXCEPTION
OF NECESSITY
9. It is humbly submitted that active euthanasia cannot be allowed under defence of
necessity under section 81 of the Indiana Penal Code, 1860.
10. Section 302 and Section 309 of the Indiana Penal Code, 1860 make murder and
attempt to suicide punishable respectively. It is a humble submission that the
legislations of the country have well recognized the violations to human body with
respect to death. A person voluntarily wanting to end his life is not spared by the law.
11. Active euthanasia is taking specific steps to cause the patient's death, such as injecting
the patient with some lethal substance, e.g. sodium pentothal which causes a person
deep sleep in a few seconds, and the person instantaneously and painlessly dies in this
deep sleep. No matter howsoever noble it may sound, this practice has not been free
4

Airedale N.H.A. Trust v. Bland, 1993 (2) W.L.R. 316 (H.L.)

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from the legal bars set. In Indiana active euthanasia is illegal and a crime under
Section 302 or at least Section 304 IPC. Physician assisted suicide is a crime under
Section 306 IPC (abetment to suicide).5
12. According to the definition of necessity, conditions to be satisfied are:6
i)

The act must have been done without any criminal intention to cause harm;

ii)

The act must be done in good faith to prevent or avoid harm to other person or
property

iii)

Harm done in order to avert a greater harm. (Mothers life to be saved over a child
in the womb.)

13. Necessity and murder.the necessity which justifies murder is of two kinds:
(i)

The necessity which is of a private nature;

(ii)

The necessity which relates to the public justice and safety.

14. The former is that necessity which obliges a man to his own defence and safeguard. In
other words, homicide is justifiable only in private defence (sections 96-106 I.P.C.)
and when it is necessary for the good of the society. The same principle cannot be
extended to where a person puts other's life in jeopardy. Such a case is assumed in
illustration (a) of section 81.7
15. Necessity is not a defence to murder according to the case of Dudley andStephens
1884. In this case, Dudley and Stephens had been shipwrecked in the SouthAtlantic
Oceaninaboatwithanothermananda17-year-oldcabinboy.Afterseveraldays
withoutfoodorwater,theydecidedtokillandeattheboy,whowasalreadyweak,
andlookedlikelytodiesoon.Theywouldkillhimandeathimforaslongasthey could, in the
hope

that

they

would

be

rescued

before

they

themselves

diedof

starvation.ThejudgesoftheQueen'sBenchDivisionheldthatthedefendantswere
guiltyofmurderinkillingthecabinboyandstatedthattheirobviousnecessitywas

no

defence. The defendants were sentenced to death, but this was commuted tosix
months'imprisonment.LordColeridgestatedthatifnecessitywasonceallowedin
5

Aruna Ramchandra Shanbaug v. Union of India (UOI) and Ors. (2011) 4 SCC 454
Act likely to cause harm, but done without criminal intent, and to prevent other harm.Nothing is an offence
merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any
criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to
person or property.
7
A captain runs down a boat with two passengers, imperiling their lives, for the sake of saving several
passengers on another boat. Such a case presents some analogy with the case supposed by Lord Bacon of two
ship wrecked persons clinging to a plank not large enough to support both, so one pushes the other off to save
himself and consequently the other drowns.
6

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UILS INTRA MOOT COURT COMPETITION, 2016

suchcircumstances,itmightbemadethelegalcloakforunbridledpassionand
atrociouscrime.Lord Coleridge in Dudley and Stephens8held that there is no defence
of neccessity in the taking of life. He stated :1) there is no necessity for preserving ones own life and in some cases there may be a
duty to sacrifice it;
2) If there were ever to be a similiar case, who would judge which person is to die?
16. In DPP v. Lynch9the House of Lords accepted by a majority of three is to two, that
duress by threats should be available as a defence to an accomplice for murder.
In Abbott v. R10, the Privy Council held that duress was unavailable as a defence to
the principal in murder. In Howethe House of Lords generalized and abolished duress
as a defence in the case of murderAccordingtoLordGriffiths,thatdecisionwas
basedonthespecialsanctitythatthelawattachedtohumanlifeandwhichdenies to a man
the right to take an innocent life even at the price of his own or anotherlife.
17. Section 300 of the Indiana Penal Code has defined the offence of murder. The second
clause of s 300 stipulates that if a person intentionally causes bodily injury, with
knowledge that such bodily injury will cause death of the person injured, then it will
be culpable homicide amounting to murder. Thus, the mens rea or the mental attitude
contemplated under cl 2 of s 300 is twofold. First, there must be an intention to cause
bodily harm. Secondly, there must be 'knowledge' that death is the 'likely' result or
consequence of such intended bodily injury.
18. The second clause of s 300 will apply if there is first, the intention to cause bodily
harm and next, there is the subjective knowledge' that death will be the likely
consequence of the intended injury. It is said to be 'subjective knowledge', because it
is accuseds own personal perception of the consequences of his act. The knowledge
here is subjective, as opposed to the objective requirement in cl 3 of s 300. Clause 3
of the section 300 stipulates that the bodily injury intended is sufficient in the ordinary
course of nature to cause death. Therefore, the requirement of cl (3) of s 300 is that it
must b established that the injury is sufficient in the ordinary course to cause death.
By objective, it means it is not the personal perception of the accused that matters, but
objectively speaking, in real terms, the injury intentionally caused is sufficient to
cause death.
8

R v. Dudley and Stephens (1884) 14 QBD 273.

(1975) AC 653
10
(1977) AC 755.
9

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UILS INTRA MOOT COURT COMPETITION, 2016

19. The word 'likely' in cl (2) of s 300, coupled with the word 'knowledge, indicates
definiteness or certainty of death and not a mere probability. It imports some kind of
certainty and not mere probability. It conveys that the chances of a thing happening
are very high. This clause contemplates a situation, where the offender has certain
special knowledge regarding the peculiar situation or health condition of the particular
victim that the intentional bodily injury is likely to be fatal.
20. In State of Rajasthan v Dhool Singh the Supreme Court held the accused guilty of
murder who inflicted incised of a sword on the neck of the deceased, which l cut with
excessive bleeding and the con sequential heart failure, on the ground that he knew
that the bodily injury caused by him would likely cause death of the injured.
21. Hence, it is humbly submitted that doctors are liable for murder. A defence of
necessity has never been applied to allow the taking of human life except when that
could be justified on the grounds that it was necessary to save one's own life or to
protect the lives of others. Moreover it is difficult as it can be to accept, that we
cannot eliminate all suffering, that we should not seek to eliminate it by inflicting
death, and that euthanasia is unnecessary for the relief of pain. In extreme cases, pain
relief can be achieved in ways that do not involve killing patients. Doctors cannot
decide whose life is important.
22. Therefore the defence of necessity s not available with doctors.
1.3 THAT

DOCTORS

MIGHT

USE

THE

POWER

ARBITRARILY

IN

EMERGENCY CASES
23. It is most humbly submitted that allowing active euthanasia in cases of emergency
will give doctors wide opportunities to abuse their power. It is humbly stated that the
abuse in such a case will not lead to any pecuniary or monetary loss or a loss which
can be compensated. It will lead to loss of life of the victim, and that too by someone
who is considered to be a life saver.
24. It is a humble submission that allowing active euthanasia in cases of emergency
implies that the doctors have to act on their own accord, and a detailed opinion of the
Courts might not be possible as the emergency demands quick action usually.
Hence its the doctors who have to decide whether active euthanasia must be
performed or not.
25. Article 14 of the Constitution confers equality as a fundamental right to all. It is a
founding faith, to use the words of Bose, J., "a way of life", and it must not be
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UILS INTRA MOOT COURT COMPETITION, 2016

subjected to a narrow pedantic or lexicographic approach. We cannot countenance

any attempt to truncate its all-embracing scope and meaning, for to do so would be to
violate its activist magnitude. Equality is a dynamic concept with many aspects and
dimensions and it cannot be "cribbled, cabined and confined" within traditional and
doctrinaire limits.
26. From a positivistic point of view, equality is antithetic to arbitrariness. In
fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a
republic while the other, to the whim and caprice of an absolute monarch. Where an
act is arbitrary it is implicit in it that it is unequal both according to political logic and
constitutional law and is therefore violative of Art. 14.11
27. If doctors are allowed to decide whose life is more important as in the present case it
was a choice between Meera and Mohan, or if they manipulate the term emergency
to end someones life for ulterior benefits, then it is a gross violation of article 14 and
21 of our noble Constitution. If this provision is misused, whose probability is high,
the wrong done can never be undone. The honourable Court must proceed with
utmost caution while considering this contention.
28. The question as to reasonable classification is allowed under this article does not
arise as the reasons here are not of the legislature or of the honourable Court but of
the doctors operating the patient. And there will be no point arguing whether reasons
are right or wrong, once when life is taken.
29. Hence, it is a humble submission that by allowing doctors for active euthanasia in
emergency cases is downright violation of article 14 of the Constitution.
1.4 THAT

THE

HONBLE

COURT

CANNOT

PERMIT

FOR

ACTIVE

EUTHANASIA AS IT A LEGISLATIVE FUNCTION

30. It is most humbly submitted that the honourable court cannot pass an order for
allowing active euthanasia, even in emergency cases, as it will be a legislative
function, which can only be performed by the legislative bodies of the State.12
31. Assuming arguendo that the honourable court does find weight in the need for active
euthanasia in emergency cases, then it is most humbly submitted that legalizing
euthanasia in case of emergency situations isnt and cannot be described as a judicial
function.
11

Ajay Hasia Etc v. Khalid Mujib Sehravardi & Ors AIR 1981 SC 487
Article 50 states that The State shall take steps to separate the judiciary from the executive in the public
services of the State.

12

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UILS INTRA MOOT COURT COMPETITION, 2016

32. In the landmark judgment of ArunaShanbaugh, the Court started the discussion by
pointing out the distinction between active and passive euthanasia and observed that
the general legal position all over the world seems to be that while active euthanasia
is illegal unless there is legislation permitting it, passive euthanasia is legal even
without legislation provided certain conditions and safeguards are maintained.
Hence, the Apex Court has agreed to the fact that active euthanasia can only be
brought into force by legislation.
33. It is humbly submitted that legalizing active euthanasia will have the effect of
amending sections 299, 300, 302, 304, 306 and 309 of the Indian Penal Code. It is
humbly submitted that there is a significant difference between an interpretation of
a provision and amendment of the same. The aforementioned sections have
nowhere contemplated such an unusual situation where ending of life becomes
necessary, more so when a person has already obtained a decree for passive
euthanasia. And no possible stretch of imagination may lead us to the fact that active
euthanasia in cases of emergency might come under an exception to the offences
stated. In fact, euthanasia is regarded as an unethical practice according to regulation
6.7 of Code of Medical Ethics Regulations 2012.
34. It is humbly stated that the intention of legislature is clear and no amount of
constructive interpretation can lead to the conclusion that exception of active
euthanasia was indeed intended by the lawmakers. Hence, allowing active euthanasia
in emergency cases by the Court will amount to violation of the basic principle of
separation of powers, which has been held to be a part of the basic structure of the
Constitution.13
35. The concept of Separation of Powers, even though not found in any particular
constitutional provision, is inherent in the polity the Constitution has adopted. The
aim of Separation of Powers is to achieve the maximum extent of accountability of
each branch of the Government.
36. There is no doubt that judicial activism and judge made law are gaining popular
support with each passing day, but they too have been limited by the honourable
Courts. The Courts have time and again, cautioned the Courts about their powers
which are limited to legitimate judicial activism and nothing beyond.

13

Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, Indira Nehru Gandhi v. Raj Narain AIR 1975 SC
2299

19

UILS INTRA MOOT COURT COMPETITION, 2016

37. Courts have to function within the established parameters and constitutional
bounds. Decisions should have a jurisprudential base with clearly discernible
principles. Courts have to be careful to see that they do not overstep their limits
because to them is assigned the sacred duty of guarding the Constitution. Policy
matters, fiscal, educational or otherwise, are thus best left to the judgment of the
executive. {} Courts cannot "create rights" where none exist nor can they go on
making orders which are incapable of enforcement or violative of other laws or
settled legal principles. With a view to see that judicial activism does not become
"judicial adventurism", the courts must act with caution and proper restraint. {} It
is imperative to preserve the sanctity and credibility of judicial process. It needs to be
remembered that courts cannot run the government.14
38. Hence, it is most humbly submitted that by allowing active euthanasia in cases of
emergency situations, the Court will encroach upon the functions of legislative
bodies, and hence violate the principle of separation of powers which is a part of basic
structure of the Constitution of Indiana.
39. In the light of above arguments, it is humbly stated that active euthanasia should not
allowed in emergency cases or otherwise and the Supreme Court judgment in Aruna
Ramchandra Shanbaugh be upheld.

14

Common Cause (A Regd. Society) vs Union Of India And Others. Writ Petition (civil)
2003

20

580 of

UILS INTRA MOOT COURT COMPETITION, 2016

2. WHETHER CONVICTION UNDER 302, 379, 392 AND 395 r/w SECTION 34
IS JUSTIFIED?
40. It is humbly submitted that conviction of doctors is justified.
2.1 THAT DOCTORS ARE GUILTY UNDER SECTION 302 OF INDIANA
PENAL CODE.
41. It is humbly submitted that doctors are guilty for murder under section 302 of the
Code.
42. The doctrine of causation is based on the simple premise that `a man can only be held
liable for the consequence of his own actions'. The entire doctrine is effectively based
on the interpretation of a single word: 'consequence'. A liberal definition of the word
consequence extends not to only direct acts of a person but also to the acts done
through innocent agents like cases of duress, or use of infants or insane people to
commit crime. This principle of causation is best illustrated by Illustration (b) under
section 299 of the Indian Penal Code, 1860.15
43. According to the 5th edition of Black's Law Dictionary, "....cause of an injury is the
primary or moving cause, or that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which
the accident could not have happened [Causa sine qua non], if the injury be one which
might be reasonably anticipated or foreseen as a natural consequence of the wrongful
act."
44. Courts generally apply a strict rule of causation to merit conviction under Section 302.
The consequence must be a direct result of the initial act for conviction under this
section and any form of unintended link breaks the chain of causation.
45. It is a humble submission that Mohan died due to the act of taking out his kidney by
the doctors. It is humbly submitted that post mortem report of Mohans death is a

15

A knows Z to be behind a bush. B does not know it. A, intending to cause or knowing it to be likely to cause
Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, but A has
committed the offence of culpable homicide. Due to this broad and liberal nature of the doctrine of causation, it
often overlaps with actus reus and mens rea, and deals with cases of the coincidence of the mens rea and the
actus reus and the doctrine of transferred malice.

21

UILS INTRA MOOT COURT COMPETITION, 2016

significant piece of evidence in this case. It is most humbly submitted that the
acceptance of post mortem report is governed by section 45 of the Evidence Act.16
46. It is humbly submitted that the following points may be borne in mind:
1. As stated in the facts, the death of Mohan was caused due to taking out the kidneys.
2. Also, the facts themselves state that the doctors knew that the act would mean instant
death of Mohan.
3. The honorable Trial Court and High Court have accepted the post-mortem report.
47. It is a humble submission that the first two points turn the tables in favour of the post
mortem report as it is supported by the other direct and circumstantial evidence. For a
person already in coma, it is not possible that his only kidney is taken out and he
survives without any external help.
48. The experts' evidence is only a piece of evidence and the weight to be given to it has
to be judged along with other evidence as evidence of this nature is ordinarily not
conclusive. Such evidence, therefore, cannot be taken as substantive piece of evidence
but is there to corroborate the other evidence.17 The other evidence provided
corroborates with the medical report as well.
49. It is humbly submitted that the post mortem report is reliable piece of evidence. The
objections to reliability of the report should have some solid ground. It is only when
the medical evidence totally improbabilises the ocular evidence, that the Court starts
suspecting the veracity of the evidence and not otherwise.18 The report is not
inconsistent with the other evidence, but instead, corroborates with the evidence and
hence can be the basis for conviction.19 It has been held that it is often direct evidence
on a victims person.20
50. Moreover, the report has been previously accepted by the Trial and High Courts
which bring sanctity to this report. It has been held that where the report has been
accepted, a presumption has raised in favour of the evidence and it is defence, in this

16

45. Opinions of experts.When the Court has to form an opinion upon a point of foreign law or of science or
art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially
skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are
relevant facts. Such persons are called experts.
17
Balkrishna Das Agarwal vs Smt. Radha Devi And Ors. AIR 1989 All 133.
18
Surinder Singh And Anr vs State Of U.PAppeal (crl.) 896 of 1996Baso Prasad & Ors vs State Of
Bihar Appeal (crl.) 1169-1170 of 2005
19
Barkau v. State of Uttar Pradesh 1993 All LJ 1110.
20
Nagindra Bal Mitra v. Sunil Chandra Ray AIR 1960 SC 706.

22

UILS INTRA MOOT COURT COMPETITION, 2016

case the petitioners, who have to disprove it.

21

Weightage has to be given to medical

opinion over ordinary opinion.22

51. Therefore, it is humbly submitted that the post mortem report is a very relevant23 and
reliable piece of evidence in this case.
52. Also, as already discussed in argument 1.2, necessity can never be a defence for
murder. In Andhra Pradesh High Court, in case Nagendra Mohan Patnaik And Ors.
vs The Government Of A.P.24 the question arises regarding the validity of the
Andhra Pradesh Transplantation of Human Organs Act, 1995 in the light that it
violates Article 14 and 21 of the constitution. The argument of the petitioner is that
art. 21 entails not only right to life but a dignified life and everything that protects the
quality of life is inherent in the guarantee offered by Article 21. But court held the act
as valid and also said that in any stretch of imagination the provision is not to be
extended to taking someone elses life to save one's own life.
53. Hence, it is humbly submitted that doctors are guilty under section 302 of the Code.
2.2 THAT DOCTORS ARE GUILTY UNDER SECTION 379, 392 AND 395 OF
INDIANA PENAL CODE.
54. It is humbly submitted that doctors are guilty under section 302 of the Indiana Penal
Code.
55. Dispossessing one of a movable property without his consent and with a dishonest
intention is theft.25From section 378 it is clear that following are the necessary
ingredients required to constitute theft.
1. Dishonest Intention
2. Moveable Property
56. DISHONESTLY is defined as whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is said to do that
thing dishonestly.26

21

State Of Gujarat vs Navalchand Thakarshi And Ors.(1994) 2 GLR 998. When the Report is made
admissible in evidence it goes without saying that the result indicated in the Report is obtained after following a
standard procedure with the aid of standard materials/ chemicals. Therefore, presumption will have to be raised
that the required procedure is followed with required material. When defence has examined a person, namely
the expert, it is for defence to rebut the presumption. In absence of that no adverse inference is permissible.
22
Mayur v. State of Gujarat AIR 1983 SC 66.
23
Mehr Ilahi v. Emperor 12 Cr LJ 485, 12 IC 93.
24
1997 (1) ALT 504
25
378. Theft Whoever, intending to take dishonestly any moveable property out of the possession of any
person without that persons consent, moves that property in order to such taking, is said to commit theft.
26
Section 24, Indiana Penal Code, 1860.

23

UILS INTRA MOOT COURT COMPETITION, 2016

57. It is most humbly submitted that the act of doctors of taking away the kidney very
conveniently falls within these definitions stated. The doctors had no lawful
entitlement on Mohans kidney but they nevertheless deprived Mohan of its
possession.
58. Another fact that must be taken into account is that when the petitioners were not able
to find a kidney for Meera they did some tests on Mohan and found his kidney to be a
perfect match. It is submitted that the doctors had previously borne in mind to take
Mohans kidney out if it serves the purpose.
59. Dishonestly was interpreted by the Honble Supreme Court, dishonestly does not
necessarily imply wrongful gain to the accused. A person doing an act dishonestly
may intend to cause wrongful gain to some other.27In the present petition also, no
wrongful gain was caused to the accused. Rather, the accused caused wrongful gain to
a young girl, Meera. It is a humble submission that the doctors had a dishonest
intention while committing the act.
60. Moveable Property is defined in section 2228 of the Indiana Penal Code. It is a humble
submission that moveable property has not been given an exhaustive definition.
Instead it means all the things except the ones attached to earth. Further, moveable
property means something that can be transferred from possession of one person to
the possession of another person. Since there occurred a transfer of possession of
Mohans kidney from his possession to the possession of the doctors and subsequently
to Meeras possession, Kidney, beyond doubt, falls in the definition of Moveable
property.
61. 21. It was no doubt felt, having regard to the various ways in which electric energy
may be taken dishonestly, that difficulty might arise in applying the definition of the
Penal Code without such a provision. The necessity for such a provision does not, I
think, imply that electric energy is not movable property but rather that theft of
electric energy may be committed other, wise than by moving it out of the possession
of the owner. This is indicated by the use of the words 'consumes' and 'use'. The word
'abstracts' on the other hand means that it is 'drawn away,' that is, moved, though
under the definition in Section 89 it becomes unnecessary to prove an intention to
27

Anil Ritolla v. State of Bihar [(2007) 10 SCC 110, 113 (SC)]. See also Hay v. Emperor [AIR 1925 Oudh 469]

28

22. "Movable property".--The words "movable property" are intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to anything which is attached
to the earth.

24

UILS INTRA MOOT COURT COMPETITION, 2016

move it out of the owner's possession, for the question might arise whether it was in
his possession when so moved.
22. And quite apart from these considerations I cannot see any difficulty in holding
that electric energy is movable, for it can certainly be transmitted or sent from one
place to another, and this implies that it is moved.29
62. In order to determine whether any property right in the human body exists, property
itself should first attain a satisfactory definition. The common tendency to define
property is with respect to physical objects. But property actually refers to "rights or
relationships among people with respect to [those objects]."Most property theorists
picture property as a "bundle of rights" -- a commingled group of separate rights
gained when one acquires property. Classically, these include the right to use
property, the right to exclude others from using one's property, and the right to
transfer or "alienate" property. Considering several other theories advanced to justify
property rights John Locke espoused a theory of property grounded in principles of
natural law.30
63. In India government has also adopted the similar view that is adopted by the other
countries that the commercial trading in the organs is prohibited. With the intent of
prohibiting commercial trading in human organs India has enacted The
Transplantation OfHuman Organs Act, 1994.31
64. Consent means voluntary acquiescence to the proposal of another. Honble Supreme
Court observed that consent implies the exercise of a free and untrammelled right to
forbid or without what is being consented to it always involves a voluntary act and
conscious acceptance of what is proposed to be done by another and concurred in by
the former.32It is submitted that there was no consent given for the removal of kidney
either by the deceased or by his relatives expressly or impliedly. To contend that just
because Mohan one day had decided to donate his kidneys post death or the fact that
Suman had filed and got approval of the High Court for passive Euthanasia, by no
29

Naini Tal Hotel Co. Ltd. vs Municipal Board AIR 1946 All 502
In regard to human beings and property, Locke stated that all people by nature have a property interest in their
own "person." This right derived from one of Locke's central theses: people could own things external to
themselves only because they first have ownership in their own bodies.
31
The Act redefines death to include the concept of brain stem death making retrieval of organs possible after
proper consent. The Act permits transplantation of various cadaveric organs including the kidneys. The Act
makes commercial trading in organs an offence. The Act makes it mandatory for all institutions conducting
transplants to register with the authority appointed by the government. All persons associated in any way with
hospitals conducting
32
Rabinarayana Das v. State [(1992) CLJ 269, p271]
30

25

UILS INTRA MOOT COURT COMPETITION, 2016

means it connotes that there was an implied consent. What was consented for was to
withdraw his treatment and not remove his kidney. Their act cannot be excused off
within the garb of the decree for passive euthanasia. The doctors act is a gross
violation of the deceaseds right over his body.
65. The plea for necessity cannot be justified for this act because necessity is applicable in
cases where act is done with good faith and intention. However, as defined in Section
52, good faith means act done with due care and caution. The Court has to see
whether in the circumstances in which the accused was, had exercised due care and
caution. The question is not what another man would have done, but what the accused
did at the time, and what more he could have done, but which he had failed to do. The
fact that the doctors did not even inform the wife or other relatives of the deceased
makes it apparent that no due care and caution was exercised by the doctors. This act
of the petitioners shows negligence and sheer disregard to medical ethics and to
emotions of the deceaseds family by terminating his life on their own accord without
even informing the concerned, let alone obtaining their consent.
66. Robbery is defined in Section 390 of Indiana Penal Code.33The Honble Supreme
Court laid down the essentials for robbery34: (1) Accused committed theft; (2) Accused
voluntarily caused or attempted to cause: (i) death, hurt or wrongful restraint. (ii)
Fear of instant death, hurt or wrongful restraint; (3) He did either act: (i) to commit
theft. (ii) While committing theft. (iii) In carrying away or in the attempt to carry
away property obtained by theft.
67. The property in question is movable property. It was in the possession of the
deceased. The accused moved it voluntarily and knowingly, with the intent to transfer
the possession. No prior consent had been obtained by the accused petitioners either
by the deceased or by his relatives. The accused petitioners caused death of the
deceased voluntarily, while committing theft. Thus the doctors fulfil all the
ingredients required to constitute robbery. It has been proved in the preceding
paragraphs that the petitioners did commit theft of the deceaseds kidney.

33

Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or
attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts
to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint.
34
Venugopal and Ors vs State Of Karnataka [2008] INSC 852.

26

UILS INTRA MOOT COURT COMPETITION, 2016

68. A person is said to cause an effect voluntarily when he causes it by means whereby
he intended to cause it, or by means which, at the time of employing those means, he
knew or had reason to believe to be likely to cause it.35
69. It is an undisputed fact of law in robbery that the hurt contemplated must be a
conscious and voluntary act on the part of the thief. It is submitted that the doctors
voluntarily pulled out the kidney of the deceased knowing that it would cause his
death. The wilful act of the doctors even after knowing the consequences of it clearly
provides the necessary mens rea. The doctors are guilty of committing robbery.
70. On a plain reading of section 39136, it is clear that to constitute an offence of `dacoity',
robbery essentially should be committed by five or more persons..
71. Section 396 states that : If any one of five or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of those
persons shall be punished with death, or imprisonment for life, or rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to
fine."
72. 8. On a plain reading of these provisions, it is clear that to constitute an offence of
`dacoity', robbery essentially should be committed by five or more persons. Similarly,
to constitute an offence of `dacoity with murder' any one of the five or more persons
should commit a murder while committing the dacoity, then every one of such
persons so committing, attempting to commit or aiding, by fiction of law, would be
deemed to have committed the offence of murder and be liable for punishment
provided under these provisions depending upon the facts and circumstances of the
case.37
73. Hence, it is humbly stated that the doctors are guilty under sections 379, 392 and 395
of the Code.
74. Hence, it is humbly stated that the conviction of doctors on grounds of murder, theft
and dacoity is justified.

35

Section 39, Indiana Penal Code, 1860.

391. When five or more persons conjointly commit or attempt to commit a robbery, or hwere the whole
number of persons conjointly committing or attempting to commit a robbery and persons present and adding
such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said
to commit dacoity.
37
Rafiq Ahmed @ Rafi vs State Of U.P on 4 August, 2011
36

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UILS INTRA MOOT COURT COMPETITION, 2016

3. WHETHER SUMAN IS ENTITLED TO COMPENSATION BY THE

DOCTORS?
75. It is humbly stated that Suman is entitled to receive compensation by the doctors.

3.1 THAT SUMAN IS NOT A VICTIM UNDER SECTION 357 OR 357A OF

THE CODE OF CRIMINAL PROCEDURE, 1973.
76. It is most humbly submitted that Suman is a victim within the meaning of Section 357
of Code of Criminal Procedure, 1908. Suman and Mohan got married under Hindu
Marriage Act, 1955 on 04.08.1985 and were very happy with their married life.
77. It is submitted that the wife of the deceased (Suman) is not a victim38 within the
meaning of Section 3573940 of Code of Criminal Procedure, 1973.
78. Section 44, Indian Penal Code defines injury as any harm whatever illegally caused
to any person, in body, mind, reputation or property.
79. It is humbly submitted that Suman has suffered injury by the acts of the doctors.
They both got married on 8th August 1985 and their marriage subsisted till death of
Mohan. It is a humble submission that Indian law has recognized the duty of husband
to maintain his wife.41
80. By the act of the doctors, Suman has not just been exposed to acute mental trauma
and emotional suffering, but she has also been wrongfully denied the care and
protection her husband had to offer for her.
81. It has already been discussed that a victim is a person suffering emotional, mental
or pecuniary harm. Suman, in this case has suffered it all- mental, emotional and
pecuniary. While nothing cannot really compensate for the loss incurred by her, a
monetary compensation becomes necessary and rightful keeping n view the gravity of
wrong done.
38

(wa) victim means a person who has suffered any loss or injury caused by reason of the act or omission for
which the accused person has been charged and the expression victim includes his or her guardian or legal
heir.
39
357. Order to pay compensation- (3) When a Court imposes a sentence of which fine does not form a part,
the Court may, when passing judgment, order the accused persons to pay, by way of compensation, such amount
as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which
the accused person has been so sentenced.
40

"Victims" means persons who, individually or collectively, have suffered harm, including physical or mental
injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts
or omissions that are in violation of criminal laws operative within Member States, including those laws
prescribing criminal abuse of power.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. reiterated by Andhra hc in
D. Sudharkar vs. Panapu Sreenivasulu
41
Relevant provisions of HAMA and 125 cRpc

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UILS INTRA MOOT COURT COMPETITION, 2016

82. The contention that a decree for divorce was filed by Suman does not affect her
entitlement because even if the decree for divorce was passed, Suman would have still
been granted maintenance post-divorce in normal circumstances. Hence, it is humbly
submitted that Suman is a victim under section 357 of the Cr. P.C.
3.2 THAT SUMANS RIGHTS ARE NOT AFFECTED BY THE PERIOD SHE
HAD UNDERGONE JUDICIAL SEPARATION
83. It is humbly submitted that Sumans right to compensation has not been adversely
affected by the fact that the couple had undergone a period of judicial separation.
84. The facts of the case are clear. Suman was the lawfully wedded wife of the deceased.
Indeed they had undergone a period for judicial separation and she did file for
divorce, but the divorce had not been granted. Judicial separation does not and cannot
ever mean termination of marriage. The legal status of the marriage does not end by
judicial separation. It means separation from bed and board.42 It is different from
divorce that puts the marriage to an end.43
85. Merely because Suman filed for divorce does not extinguish the doctors liability to
rehabilitate the victims of the wrong committed by them. There is no dispute about
rights of wife for compensation in cases where the husband is murdered. And Suman,
holding legal status of a wife has all the rights to compensation.
86. The only argument that the petitioners have with them is that the emotional bonding
of the couple was weak and the relations were strained, owing to their pending
divorce case. It is the most humble submission that there are a lot of families where
the relations might get strained with time, the only difference is that they do not come
out in public, like Suman and Mohan did. If compensation is denied on the ground
that there was no emotional suffering for Suman, the decision of the case might get
misused in the future for offenders to get away with their liability by proving that the
relations were strained. This might choke the socially beneficial provisions the section
357 is.
87. Hence, it is humbly submitted that Suman is entitled to receive compensation from the
doctors.

42
43

Paras Diwan, Modern Hindu law, 128.

Ibid. p 130.

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UILS INTRA MOOT COURT COMPETITION, 2016

4. WHETHER THE HIGH COURT HAS INHERENT POWERS UNDER THE

CONSTITUTION TO ORDER MEDICAL COUNCIL OF INDIA TO INITATE
DISCIPLINARY PROCEEDINGS AGAINST THE DOCTORS WHILE
DEALING WITH A CASE UNDER THE CONTEMPT OF COURTS ACT,
1971?
88. It is most humbly submitted that the High Court has inherent powers under the
Constitution44 to order Medical Council of India to initiate disciplinary proceedings
against the doctors while dealing with a case under the Contempt of Courts Act, 1971.
89. A court of record is a court, the records of which are admitted to be of evidentiary
value and not to be questioned when produced before any court. In law, an act of
disobedience to a court order may be treated as either criminal or civil contempt;
sanctions for the latter end upon compliance with the order. An act or language that
consists solely of an affront to a court or interferes with the conduct of its business
constitutes criminal contempt; such contempt carries sanctions designed to punish as
well as to coerce compliance.45
90. Section 2(b) of the act defines 'civil contempt'.46It is most humbly submitted that
having flouted the judicial decree passed on April 3, 2016, the doctors have
committed civil contempt.
91. It has been contended by the petitioner that the Court cannot direct the Medical
Council of India to initiate disciplinary proceedings against the doctors as there lies
no jurisdiction with them to do that. However, it is humbly submitted that the High
Court has exercised its inherent powers vested in it by the Constitution of India in
doing so.
92. The juridical basis of the inherent jurisdiction has been well described by Master
Jacob as being: 'the authority of the judiciary to uphold, to protect and to fulfil the
judicial function of administering justice according to law in a regular, orderly and
effective manner.' Such a power is not derived from statute nor truly from the common
law but instead flows from the very concept of a court of law."

44

Article 215: High Courts to be courts of record Every High Court shall be a court of record and shall have all
the powers of such a court including the power to punish for contempt of itself.
45
William Benton, The Britannica Concise Encyclopedia, 15th edition, Encyclopedia Britannica Inc., London,
1974, p. 134.
46
Wilful disobedience to any judgment, decree, order, direction or any other process of court or wilful breach
of an undertaking given to the court.

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UILS INTRA MOOT COURT COMPETITION, 2016

93. It is a humble submission that by ordering the Medical Council of India, the High
Court has not abrogated or exceeded any of its powers so as to render the order void.
94. The following principles would govern the exercise of inherent jurisdiction of the HC:
1. Power is not to be resorted to if there is specific provision in code for redress of
grievances

of

aggrieved

party

2. It should be exercised sparingly to prevent abuse of process of any Court or

otherwise

to

secure

ends

of

justice

3. It should not be exercised against the express bar of the law engrafted in any other
provision of the code.47
95. For the team of doctors who first committed an active euthanasia on a patient they
were legally obliged to perform a passive, apart for being convicted for charge of
murder under Section 302, are also liable for unethical conduct48. Recklessness and
irresponsible behaviour of doctors is a matter of concern for the High Court. They are
medical professionals, who deal with the lives of so many people on a daily basis. The
profession of medicine encompasses its practice, teaching and administration. The
performance and conduct of a professional must be such as would not only prove
his/her skills and competence but must show that he is truly worthy of the respect of
students, patients and general public. He must earn it by his exemplary qualities and
nobility. Hence, in all capacities the professional is accountable to his peers and the
society.49
96. Simply by imposing fine or imprisonment, the ends of justice will not be met. To
carry out judicial function is a very heavy but a basic task of the Court. The Council
can as a supreme or apex body proceed against every doctor, medical practitioner and
teacher if his/her conduct is infamous or he/she has committed a professional
misconduct.
97. It is humbly submitted that the impugned order has not violated section 15(1) of the
Act50, or that the power to direct the Council has been waived off by the virture of
section 15. It is most humbly submitted that section 15 of the Act defines quantum of
punishment. Here, the word punish is of utmost importance. If one has a closer look
47

Madhu Limaye v. Maharashtra1978 AIR 47.

Regulation 6.7 of Code of Medical Ethics Regulations 2012.
49
Dr. Shashikant C. Patel vs Medical Council Of India And Anr. WP.11429.2012.
50
Section 15 of the Contempt of Courts Act, 1971 reads as Save as otherwise expressly provided in this Act or
in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to
six months, or with fine which may extend to two thousand rupees, or with both.
48

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at the order, the Court ordered the doctors to pay two thousand each, which is very
well covered by the section. Directing the Medical Council to conduct proceedings
can, by no stretch of imagination, be concluded to be as a punishment for doctors. It
is merely a direction to the Council to take note of their recent conduct.
98. Moreover, the power to punish for contempt being inherent in a court of record, it
follows that no act of parliament can take away that inherent jurisdiction of the Court
of Record to punish for contempt51 and the Parliament's power of legislation on the
subject cannot, therefore, be so exercised as to stultify the status and dignity of the
Supreme Court and/or the High Courts, though such a legislation may serve as a guide
for the determination of the nature of punishment which this court may impose in the
case of established contempt. Hence, it comes out that the legislation must be
followed in substance, and not in totality. It is most humbly submitted that the object
of contempt laws is that justice is duly delivered. It is another submission that justice
will be incomplete if they are spared by a mere fine.
99. Contempt of a High Court itself is concerned as distinct from that of a subordinate
Court, Article 215 of the Constitution of India vests these rights in every High Court.
Hence no Act of a Legislature could take away that jurisdiction and confer it afresh by
virtue of its own authority.52 Neither the Supreme Court nor the Legislature can
deprive a High Court of the right which is so vested in it.53
100.

Moreover, it is not the first time that the Court has directed the disciplinary

Committee to conduct some action. It has been a commonly accepted practice. It is

rather in public interest that disciplinary proceedings against these doctors take place.
There have been many cases as well where the Court had ordered more than just a
fine and imprisonment in contempt proceedings because justice demanded it to be
so.54
101.

In the light of above arguments, it is humbly submitted that the High Court has

inherent powers under the Constitution to order Medical Council of India to initiate

51

Delhi Judicial Service Association case, Supreme Court Bar Association case and Income Tax Appellate
Tribunal v V.K. Agarwal
52
Delhi Judicial Service Association case, Supreme Court Bar Association case and Income Tax Appellate
Tribunal v V.K. Agarwal
53
Sukhdeo Singh Sodhi v. Honble J.S. Teja Singh, AIR 1954 SC 186.
54
Sita Ram Sahu v Smt. Lalpari Devi & others (1982) 2 SCC 577. Murray & Co. v Ashok KR. Newatia and
another (2000) 2 SCC 367. Delhi Development Authority v Skipper Construction and Another (1995) 3 SCC
507. Zahira Hasibulla Sheikh.

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disciplinary proceedings against the doctors while dealing with a case under the
Contempt of Courts Act, 1971.

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PRAYER
Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed by the respondents in this matter that the Honorable Supreme
Court of Indiana may be pleased to dismiss the instant appeal of the petitioners and uphold
the conviction of the petitioners under Sections 302, 379, 392 and 395 r/w section 34 of the
Indiana Penal Code.
It is further prayed that the Honble Supreme Court may kindly uphold the decision given by
this Honble Court in Aruna Ramachandra Shanbaug and hold active euthanasia strictly
illegal.
It is also humbly prayed that the petitioners be directed to pay compensation of Rs. 20 lacs to
the wife of the deceased and Rs. 10 lacs to the Government of Chandipur.
It is also prayed that the order of the High Court dated 26.02.2016 may kindly be upheld ..
Any other order or direction, which this Honble Court may deem fit and appropriate may
also be granted in favour of the respondents, in the interest of justice, equity and good
conscience.

Respectfully Submitted by:

Counsels for Respondents (Supreme Court)

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