TEAM CODE: TC-18

IN THE HON’BLE SUPREME COURT OF INDIA

IN THE MATTER OF:

SPECIAL LEAVE PETITION NO. ___/2017

(Under Article 136 of the Constitution of India)

RAHUL DIXIT … PETITIONER( 1)

Versus
UNION OF INDIA … RESPONDENT

WITH

WRIT PETITION (CIVIL) NO. ___/2017

(Under Article 32 of the Constitution of India)

KIND HANDS FOUNDATION … PETITIONER (2)

Versus
UNION OF INDIA … RESPONDENT

ADVOCATE FOR RESPONDENT

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................................ 1

INDEX OF AUTHORITIES ................................................................................................................... 3
STATEMENT OF JURISDICTION ....................................................................................................... 8
STATEMENT OF FACTS...................................................................................................................... 9
QUESTIONS OF LAW ........................................................................................................................ 11
SUMMARY OF ARGUMENTS .......................................................................................................... 12
REPLY TO PETITIONER 1 ............................................................................................................. 12
1. APPELLANT(1)’S PLEA FOR EUTHANASIA SHOULD NOT BE ACCEPTED AS THERE
EXISTS NO RIGHT TO DIE. .......................................................................................................... 12
1.1. THE APPELLANT (1)’S PLEA FOR EUTHANASIA IS NOT MAINTAINABLE
BEFORE THE SUPREME COURT OF INDIA UNDER ARTICLE 136. .................................. 12
1.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED APPELLANT (1) PLEA
FOR EUTHANASIA AS IT IS VIOLATIVE OF ARTICLE 21. ................................................ 12
2. WHETHER REEMA IS PUNISHABLE UNDER S.300 OF INDIAN PENAL CODE, 1860,
IF SHE ASSISTS RAHUL? .............................................................................................................. 13
3. APPELLANT SHOULD NOT BE ALLOWED TO BE KEPT IN CRYONIC SUSPENSION
ON HIS DEMISE IN FURTHERANCE OF THE ORDER OF THE UK COURT ......................... 13
3.1. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE APPELLANT(1)’S
APPLICATION FOR EXECUTION OF THE UK HIGH COURT ORDER QUA CRYONICS?
13
3.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE FIRST
PETITIONER’S PLEA FOR CRYONIC SUSPENSION. ........................................................... 13
REPLY TO PETITIONER 2 ............................................................................................................. 14
1. THE PUBLIC INTEREST LITIGATION BY PETITIONER 2 IS NOT MAINTAINABLE
UNDER ARTICLE 32 IN THE SUPREME COURT OF INDIA. ................................................... 14
2. ANY TYPE OF EUTHANASIA BEING PRACTISED IS NOT A VIOLATION OF
ARTICLE 21 OF THE CONSTITUTION? ...................................................................................... 14
3. CRYONIC SUSPENSION SHOULD NOT BE ALLOWED TO BE PRACTICED IN INDIA.
14
ARGUMENTS ADVANCED............................................................................................................... 15
REPLY TO PETITIONER 1 ............................................................................................................. 15
1. APPELLANT(1)’S PLEA FOR EUTHANASIA SHOULD NOT BE ACCEPTED AS HE
DOES NOT HAVE THE RIGHT TO DIE. ...................................................................................... 15
1.1. THE PETITION FOR EUTHANASIA IS NOT MAINTAINABLE IN THE SUPREME
COURT OF INDIA UNDER ARTICLE 136. .............................................................................. 15

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1.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED APPELLANT (1)’s
PLEA FOR EUTHANASIA AS VIOLATIVE OF ARTICLE 21. ............................................... 16
2. REEMA IS PUNISHABLE UNDER S.300 OF INDIAN PENAL CODE, 1860, IF SHE
ASSISTS RAHUL TO DIE............................................................................................................... 20
3. APPELLANT SHOULD NOT BE ALLOWED TO BE KEPT IN CRYONIC SUSPENSION
ON HIS DEMISE IN FURTHERANCE OF THE ORDER OF THE UK COURT. ........................ 22
3.1. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE ENFORCEMENT
OF THE UK HIGH COURT ORDER QUA CRYONICS. .......................................................... 22
3.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE PLEA FOR
CRYONIC SUSPENSION. ........................................................................................................... 25
REPLY TO PETITIONER 2 ............................................................................................................. 30
1. THE PUBLIC INTEREST LITIGATION IS NOT MAINTAINABLE UNDER ARTICLE 32
IN THE SUPREME COURT OF INDIA. ........................................................................................ 30
2. ANY TYPE OF EUTHANASIA BEING PRACTISED IS NOT A VIOLATION OF
ARTICLE 21 OF THE CONSTITUTION. ....................................................................................... 31
3. CRYONIC SUSPENSION SHOULD NOT BE ALLOWED TO BE PRACTICED IN INDIA.
32
PRAYER ............................................................................................................................................... 34

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INDEX OF AUTHORITIES

BOOKS AND COMMENTARIES

1. JONATHAN HERRING, MEDICAL LAW AND ETHICS (Oxford 5th ed. 2014)
2. SHAUN D. PATTINSON, MEDICAL LAW AND ETHICS (Sweet & Maxwell Ltd.
2006)
3. JOHN GRIFFTHS, HELEN WEYERS & MAURICE ADAMS, EUTHANASIA
AND LAW IN EUROPE (Hart Publishing 2008)
4. DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY (Cambridge
University Press 2007)
5. 1 DR. SUBHASH C. KASHYAP, CONSTITUTIONAL LAW OF INDIA (Universal
Law Publishing 2008)
6. 3 ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA
(LexisNexis Butterworths Madhwa 2007)
7. DR. LILY SRIVASTAVA, LAW AND MEDICINE (Universal Law Publishing 2nd
ed. 2013)
8. PUBLIC INTERST LITIGATION: RESTATEMENT OF INDIAN LAW (Universal
Law Publishing 2011)
9. 1 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA(LexisNexis
Butterworths Madhwa 14th ed. 2010)
10. DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA(LexisNexis
Butterworths Madhwa 8th ed. 2009)
11. 2 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (LexisNexis
Butterworths Madhwa 14th ed. 2009)
12. ISHWARA P. BHAT, FUNDAMENTAL RIGHTS (Eastern Law House 2004)
13. K.D. KAUR, TEXTBOOK ON THE INDIAN PENAL CODE (Universal Law
Publishing 4th ed. 2011)
14. P. BHATTACHARYYA, THE INDIAN PENAL CODE (Central Law Agency 2004)
15. SETALVAD & ATUL M., CONFLICT OF LAWS (LexisNexis Butterworths
Madhwa 2007)
16. MAHENDRA P. SINGH, V.N. SHUKLA’S CONSTITUTION OF INDIA (Eastern
Book Company 11th ed. 2008)

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17. 1 AMEL ALGHRANI, BIOETHICS, MEDICINE AND THE CRIMINAL LAW (

Cambridge University Press 2013)
18. RATANLAL & DHIRAJLAL, LAW OF CRIMES (Bharat Law House 25th ed.
2004).
19. LORD MACKAY OF CLASHFERN, HALSBURY’S LAWS OF ENGLAND
(LexisNexis 4th ed. 2003)
20. NADEAU R. GENTLES, EUTHANASIA AND ASSISTED SUICIDE: THE
CURRENT DEBATE (Stoddart Publishing 1995)

CASES CITED
1. KSRTC v. Ashrafulla Khan (1996) 2 S.C.C. 648.
2. Aruna Shanbaug v. Union of India (2011) 4 S.C.C. 454.
3. Common ause v. Union of India (2014) 5 S.C.C. 338.
4. Gian Kaur v. State of Punjab (1996) 2 S.C.C. 648.
5. Durga Shankar Mehta v. Raghuraj Singh, A.I.R. 1954 S.C. 520.
6. State of Maharashtra v. Dadaniya, A.I.R. 1971 S.C. 1722.
7. N. Suriyakala v. A Mohandoss, (2007) 9 S.C.C. 196.
8. Daryao v. State of U.P., A.I.R. 1961 S.C. 1457,
9. Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514.
10. Ghulam Sarwar v. Union of India, A.I.R. 1961 S.C. 1457.
11. Rupa Ashok Hurra v. Ashok Hurra (2002) 4 S.C.C. 388.
12. Naresh v. State of Maharashtra (1966) 3 S.C.R. 744.
13. A R Antulay v R S Nayak (1987) 1 S.C.R. 91.
14. Triveniben vs. State of Gujarat, (1989) 1 S.C.R. 509.
15. Gian Kaur v. State of Punjab, (1996) 2 S.C.C. 648.
16. H. B. Karibasamma W/o L. K. Kenchappa v. Union of India and
others, (2013) 2 KarL.J. 263
17. Basheshar Nath v. C.I.T. , (1959) 1 S.C.R. 528.
18. Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225

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19. Cruzan v. Director, Mo. Dep't of Health 110 S. Ct. 2841 (1991).
20. C. A. Thomas Master v. Union of India
21. Airedale N.H.S. Trust v. Bland 1993 A.C. 789.
22. Girish Gokhale v. Union of India MANU/SCOR/34068/2016.
23. R v. Woollin (1999) 1 A.C. 82.
24. Maruti Shripati Dubal v. State of Maharashtra, (1987) Cr.L.J. 743.
25. Siddheswari Bora v. State of Assam, (1981) Cr.L.J. 1005 (Gau).
26. R v. Adams (1957) Crim. L.R. 356.
27. Narendra v. State of Rajasthan (2014) 10 S.C.C. 248.
28. Satya v. Teja Singh (1975) 1 S.C.C. 120.
29. M/s. Alcon Electronics Pvt. Ltd v. Celem s.a. OF fos 34320 Roujan,
France & Anr. (2016) S.C.C. OnLine S.C. 1444.
30. Raj Rajendra Sardar Moloji Nar Singh Rao Shitole v. Shankar Saran,
A.I.R. 1962 S.C. 1737.
31. R Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid, (1963) 3 S.C.R. 22.
32. Moore v. Regents of the University of California (1990) 793 P. 2d 479
(Cal).
33. Re: JS (Disposal of Body) (2016) E.W.H.C. 2859 (Fam)
34. Williams v Williams (1882) L.R. 20 Ch.D. 659
35. Y Narasimha Rao v. Venkata Lakshmi (1991) 3 S.C.C. 451.
36. Dalip Kumar Jha v. State of Punjab (2014) S.C.C. Online P. & H. 20822.
37. Kishore Samrite v. State of U.P (2013) 2 S.C.C. 398.
38. K K Kochunni v. State of Madras (1959) Supp (2) S.C.R. 316
39. State of Himachal Pradesh v. A Parent, A.I.R. 1985 S.C. 910
40. State of J&K v. Ghulam Rasool, A.I.R. 1961 S.C. 1301
41. Metropolis Theatre v. Chicago, (1913) 228 U.S. 61 at 69
42. Delhi Science Forum v. Union of India (1996) 2 S.C.C. 405.

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PUBLICATIONS AND JOURNALS

1. 210th Law Commission Report
2. Thomas Aquinas on Natural Law and Positive Law, Suma Teologiczna,
http://faculty.fordham.edu/klima/Blackwell-proofs/MP_C45.pdf
3. Nazem Atassi, Amanda Cook, Cristiana M. E. Pineda, Padmaja Yerramilli-Rao,
Darlene Pulley, And Merit Cudkowicz, Depression in amyotrophic lateral sclerosis,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3155886/
4. Letter from Benjamin Franklin to Jean Baptiste Leroy (Nov. 13, 1789), in 10 THE
WRITINGS OF BENJAMIN FRANKLIN 69 (Albert Henry Smyth ed., 1907).
5. Bineet Kedia and Bhupal Bhattacharya, The Limits of Autonomy of a Patient in
Medical Treatment An Overview, 9 IRJCJ 56 (2013)
6. HEALTH MATRIX Magazine, Summer edition of 1983
7. Daniel R. Spector, Legal Implications of Cryonics, 18 Clev.-Marshall L. Rev. 341
(1969)

ACTS, RULES AND INSTRUCTIONS

1. The Constitution of India
2. The Indian Penal Code
3. The Indian Evidence Act
4. The Indian Contract Act
5. Mental Health Care Bill, 2013
6. Medical Treatment of Terminally-Ill Patients (Protection of Patients and Medical
Practitioners) Bill, 2016
7. Registrations of Births and Deaths Act, 1969
8. Transplantation of Organs Act,1994

INTERNATIONAL CONVENTIONS AND TREATIES

1. Universal Declaration of Human Rights
2. International Covenant on Civil Cultural and Political Rights
3. European Convention for the protection of Human Rights and Fundamental Freedoms

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• LEGAL DATABASES
• www.scconline.com
• www.heinonline.com
• www.manupatrafast.in
• www.westlawindia.com
• www.lexisnexis.com
• www.jstor.org

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STATEMENT OF JURISDICTION

TO

HON'BLE THE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUDGES OF THE

SUPREME COURT OF INDIA.

THE RESPONDENT, UNION OF INDIA HUMBLY SUBMITS TO THE JURISDICTION

OF THIS HON’BLE SUPREME COURT UNDER ARTICLE 136 IN PETITIONER 1’S
CASE AND UNDER ARTICLE 32 IN PETITIONER 2’S CASE AND SUBMITS THIS
MEMORANDUM IN FURTHERANCE OF THE SAME TO THIS HON’BLE COURT.

ADVOCATE FOR RESPONDENT

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STATEMENT OF FACTS

1. Rahul Dixit, a resident of Delhi went to the UK in 1982 to pursue higher studies in
Law and proceeded to become a well reputed attorney in his field, garnering the
adulations of students and clients. Rahul met and married his wife Reema, in 2003 in
the UK and the couple worked in Rahul’s top law firm ‘Amicus Curie’ in UK. The
couple visited India often, as they found great spiritual bliss on their visits to India
and even decided to move back and live by the Ganges. Unfortunately, fate struck the
happy couple’s plans in May 2014, when Rahul was diagnosed with
AMYOTROPHIC LATERAL SCLEROSIS (ALS) also known as “Lou Gehrig’s
disease”. There was no known cure for the same; nevertheless doctors were nearly
certain of achieving a breakthrough in a couple of years. His condition started
deteriorating and the doctors said that looking after him was going to be an up-hill
task.
2. Rahul’s mother, who was a British citizen decided to go in for cryonics to buy time
till the cure for his disease was available. Subsequently she obtained an order from the
UK High Court allowing them to keep Rahul in cryonic suspension at the time of his
death. This order took into consideration the opinion of the panel of doctors who were
of the view that it was only a matter of time before a cure would be found and that
this was the only option. Rahul’s health had stabilised at that point and he was
unhappy with the order and decided to move back to India with his wife. Both of them
in the meantime, made a ‘living will’. In addition to this, Reema contacted an
organization “Re-birth Medical Services” which researched in the field of cryonics in
India. She paid them a sum of £30,000 for their services and signed a contract to keep
Rahul in Cryonic suspension for a period of 12 years upon his death.
3. In January 2015, his condition worsened further and he was advised not to travel at
all. In May 2015 Reema moved the Honorable High Court for euthanasia to relieve
Rahul from his suffering and attached the copy of the UK High Court Order praying
for its execution in the event of his death. The High Court advised the couple to move
back to the UK to apply the procedure and dismissed the petition qua cryonics and
refused the execution of the UK High Court order, stating that there was no law in this
field of medicine. The Court rejected the plea for active euthanasia as violative of
Article 21 of the Constitution of India. Rahul’s condition deteriorated further leaving

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him in great pain and discomfort and as a last resort Reema moved the Supreme Court
of India for euthanasia to relieve him of his suffering, while upholding his life’s
dignity under Article 21 and enabling a painless and dignified death and subsequently
keeping him in cryonic suspension in hope of his return, once a cure was found.
4. Meanwhile the NGO, Kind Hands Foundation filed a PIL in the Supreme Court to
disallow cryonics as well as all forms of euthanasia, to protect God’s master plan and
claimed they were willing to undertake all medical expenses and take care of people
like Rahul. They dismissed cryonics as a medical fiction as against the doctrines of
rebirth/karma in Hinduism and were antagonistic to the idea of euthanasia, as no man
had the right to take another man’s life even to relieve suffering or illness.
5. The case relating to medical termination and cryonic suspension of Rahul is before
the Honorable Supreme Court of India along with the PIL by the foundation. Both the
petitions have been clubbed and the matter is now posted for final hearing.

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QUESTIONS OF LAW

1. Whether Reema’s plea for euthanasia for Rahul could be accepted releasing him
of his untold misery and conceding him a quick and dignified death?

1.1. Whether the petition is maintainable in the Supreme Court of India?

1.2.Whether the High Court erroneously rejected petitioner’s plea for Euthanasia as
violative of Article 21?

1.3.Whether any type of Euthanasia should be allowed to be practiced in India?

2. Whether Reema is punishable under S.300 of Indian Penal Code, 1860, if she
assists Rahul to die?

3. Whether Rahul should be allowed to be placed in cryonic suspension on his

demise in furtherance of the order of the UK Court?

2.1 Whether the High Court has erroneously rejected the plea for cryonic suspension?

2.2 Whether the High Court erroneously rejected the enforcement of the UK High
Court order qua cryonics?

2.3 Whether cryonic suspension should be allowed to be practiced in India?

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SUMMARY OF ARGUMENTS

REPLY TO PETITIONER 1

1. APPELLANT(1)’S PLEA FOR EUTHANASIA SHOULD NOT BE ACCEPTED AS

THERE EXISTS NO RIGHT TO DIE.

1.1. THE APPELLANT (1)’S PLEA FOR EUTHANASIA IS NOT MAINTAINABLE

BEFORE THE SUPREME COURT OF INDIA UNDER ARTICLE 136.

• The petition is not maintainable under Article 136 of the Constitution as the Supreme
Court should exercise this discretionary power only in exceptional circumstances
where a substantial question of law exists.
• Art.136 is not a regular forum of appeal and due process should be followed.
• The law as to ‘Right to Die’ under Article 21 is declared and abundantly clear as
illegal.
• The petition will not be maintainable even under the wide jurisdiction under Article
32 of the Constitution of India as the High Court has already dismissed the case on
merits.

1.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED APPELLANT (1)
PLEA FOR EUTHANASIA AS IT IS VIOLATIVE OF ARTICLE 21.

• The petition before the High Court was disposed of correctly by the High Court as it
only required enforcing rule of law.
• Prohibition on Active Euthanasia is re-inforced by the recent decision of Aruna
Shanbaug v. Union of India and the Right to Die has also been struck down by the
decision in Gian Kaur v. State of Punjab.
• Thus the restrictions imposed are under procedure established by law.
• The UK High Court Order lacks validity due to a host of reasons.

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2. WHETHER REEMA IS PUNISHABLE UNDER S.300 OF INDIAN PENAL

CODE, 1860, IF SHE ASSISTS RAHUL?
• Reema’s assistance would satisfy all the ingredients under S.300 of the Indian Penal
Code, 1860.
• Euthanasia due to impairment of faculty is no exception under the Indian Law, to the
offence of Murder.
• Consent as a defense to Murder does not apply in the present case due to i) Non-
recognition of living will ii) Nature of consent given in the present case, keeping in mind
the psche of the afflicted.

3. APPELLANT SHOULD NOT BE ALLOWED TO BE KEPT IN CRYONIC

SUSPENSION ON HIS DEMISE IN FURTHERANCE OF THE ORDER OF THE
UK COURT

3.1. THE HIGH COURT HAS JUSTIFIEDLY REJECTED THE APPLICATION FOR
EXECUTION OF THE UK HIGH COURT ORDER QUA CRYONICS?
• The UK High Court order is not executable in India as it falls under the exceptions in
S.13 of the CPC.
• Aspersions cast regarding Rahul’s consent and the jurisdictional element in the
decision, invalidate the Order and questions the competency of the Court.
• In the absence of a law governing the disposal of bodies, the customs and practices
should be interpreted to be the applicable law.
• Cryonics does not constitute a ‘proper disposal’ of the body under law.

3.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE FIRST
PETITIONER’S PLEA FOR CRYONIC SUSPENSION.
• The science, or rather fiction of Cryonics, is a scientific fad with too costly a casualty
to allow.
• The mode of treatment of dead people, in Cryonics, is against the morality, religion,
faith spirituality, culture and customs of the country.
• Such poignant a question affecting Article 21, needs to be regulated by Legislation.
• The Contract between Re-birth Medical Services and Reema is invalid in the eyes of
law.

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REPLY TO PETITIONER 2

1. THE PUBLIC INTEREST LITIGATION BY PETITIONER 2 IS NOT

MAINTAINABLE UNDER ARTICLE 32 IN THE SUPREME COURT OF
INDIA.
• The Public Interest Litigation is not maintainable under Article 32 of the Constitution
of India as it does not fulfill the locus standi required to approach the court.
• There is no violation of fundamental rights of the persons represented by the NGO as
the legal position in this regard is settled.
• No judgment or order of a competent court is pronounced in violation of a
fundamental right.

2. ANY TYPE OF EUTHANASIA BEING PRACTISED IS NOT A VIOLATION

OF ARTICLE 21 OF THE CONSTITUTION?
• The Petitioner 2’s application to disallow all forms of euthanasia is not to be
entertained by this Hon’ble court as such a declaration would amount to
pronouncement of law regarding a subject that is under legislative consideration.
• While Active Euthanasia is already illegal under the present law, the legal position of
Passive Euthanasia is a well settled principle of law.

3. CRYONIC SUSPENSION SHOULD NOT BE ALLOWED TO BE

PRACTICED IN INDIA.
• The NGO’s petition in this regard coincides with the Union’s intention to disallow
such practices for the various reasons explained.

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ARGUMENTS ADVANCED

REPLY TO PETITIONER 1

1. APPELLANT(1)’S PLEA FOR EUTHANASIA SHOULD NOT BE ACCEPTED AS

HE DOES NOT HAVE THE RIGHT TO DIE.

1.1. THE PETITION FOR EUTHANASIA IS NOT MAINTAINABLE IN THE SUPREME

COURT OF INDIA UNDER ARTICLE 136.

The present petition is not maintainable under Article 136 as it is under the discretionary
power of the Supreme Court to entertain appeals in suitable cases not otherwise provided for
in the constitution. It is in the nature of a residuary or reserve power1 and is to be used
sparingly and in exceptional cases only.2 This provision is not to be used as a regular forum
for appeal from the High Court judgment.3 In view of the decisions given by the Supreme
Court in Gian Kaur v. State of Punjab4, Aruna Ramachandra Shanbaug v. Union of India 5

6
and Common Cause v. Union of India the law as to ‘Right to Die’ under Article 21 is
declared and abundantly clear as illegal. The petitioner’s request for active euthanasia
therefore is a settled position in law and must not be granted special leave to appeal from the
judgment of the High Court. It must follow the due procedure of appeals.

The petition is neither maintainable under Article 32 of the Constitution, as it is based on the
same grounds and facts, seeking the same relief of mandamus7 on which the High Court has
heard and dismissed the application of the Petitioner under Article 226. The doctrine of res
judicata will apply as the three issues which have been presented before this court for
adjudication are the same8 as the ones in the application made to the High Court, including

1
Durga Shankar Mehta v. Raghuraj Singh, A.I.R. 1954 S.C. 520.
2
State of Maharashtra v. Dadaniya, A.I.R. 1971 S.C. 1722.
3
N. Suriyakala v. A Mohandoss, (2007) 9 S.C.C. 196.
4
(1996) 2 S.C.C. 648.
5
(2011) 4 S.C.C. 454.
6
(2014) 5 S.C.C. 338.
7
DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA pg. 198 (LexisNexis Butterworths Madhwa 8th
ed. 2009); See Daryao v. State of U.P., A.I.R. 1961 S.C. 1457, Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514.
8
DURGA DAS BASU, CONSTITUTIONAL LAW OF INDIA pg. 198 (LexisNexis Butterworths Madhwa 8th
ed. 2009); See Ghulam Sarwar v. Union of India, A.I.R. 1961 S.C. 1457.

MEMORIAL FOR RESPONDENT

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whether Reema assisting Rahul’s death would amount to murder was decided as active
euthanasia is violative of Article 21 just as S.300 penalises a person for depriving another of
his life with the intention of doing so. Moreover, Rupa Ashok Hurra v. Ashok Hurra9 has
held that final order of the Court cannot be challenged under Article 32 as violative of
Fundamental Right.

1.2. THE HIGH COURT HAS JUSTIFIEDLY REJECTED APPELLANT (1)’s PLEA FOR
EUTHANASIA AS VIOLATIVE OF ARTICLE 21.

Validity of High Court Judgment

There is an acceptable presumption that the High Court is a court of adequate power and
authority to decide on enforcement of fundamental rights of the person. They serve as
harbingers of justice and are vested with vide powers. Hence there is a presumption that the
High Court has considered the facts of the case on merits and has decided appropriately. In
Naresh v. State of Maharashtra10 it has been held that even if a Court is a State (u/A 12), 11

12
the High Court cannot be issued a writ u/A.32 against its judgment for it is presumed that
such a judgment won't violate fundamental rights and even if there was incidental violation, it
could not be held to be violative of Fundamental Right. Further, in A R Antulay v R S Nayak13
the Court held that a court can't pass an order contrary to fundamental rights.14 The
appellant’s plea to be relieved of suffering is one that amounts to active euthanasia which is
nothing but a manifestation of the ‘right to die’ which is against Article 21.15
John Stuart Mill has observed that "the only purpose for which power can be rightfully
exercised over an individual against his will is to prevent harm to others. In the part which
merely concerns himself, his independence is of right absolute."16 It is submitted that the
appellant’s plea would affect the public adversely and poses a direct threat to the fabric of
public morality. Seeking the ‘right to die’ which is expressly prohibited, under the mask of
‘right to live a dignified life, which includes dignified death’ is not permitted as 'Right to die

9
(2002) 4 S.C.C. 388.
10
(1966) 3 S.C.R. 744.
11
Constitution of India, Article 12.
12
Constitution of India, Article 13.
13
(1987) 1 S.C.R. 91.
14
Also See Triveniben vs. State of Gujarat, (1989) 1 S.C.R. 509.
15
Gian Kaur v. State of Punjab, (1996) 2 S.C.C. 648.
16
Lawrence Liang & Bhavana Thakur, Case Comments P. Rathinam v. Union of India, 7 Student Advoc. 126
(1995).

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with dignity at the end of life’ is not to be confused or equated with a non-existent right to die
an unnatural death curtailing the natural span of life’.17

It is submitted that, in order to be euthanised the appellant would effectively have to waive
his fundamental right to life and it has been clearly established that a person does not have
the right to do so.18 Article 21 guarantees protection of life and liberty but not its extinction.19
The Supreme Court is the bulwark of fundamental rights and it would be a sacrilege to
whittle down those rights.20

It is submitted that the possibility of Article 21 encompassing a plea for active euthanasia is
baseless as it has been clearly laid down by Gian Kaur’s 21case and subsequently in Aruna’s
case 22that such a right is non-existent, unless a legislation to that effect is passed. The law's
interference in this regard is necessary to safeguard and prevent abuse of euthanasia. In
consonance with what Dr. Glanville Williams suggests -"a measure that does no more than
give legislative blessing to the practise (of euthanasia), that the great weight of medical
opinion already approves" must be welcome,23 the legislative process has commenced
keeping in mind the precedents and accepted medical practices in order to help persons who
are terminally ill and suffering greatly. Moreover the Court cannot be compelled to make
decisions based on individual cases as this is a matter of public health and morality.24 With its
great potential for misuse as Prof. John Keown points out from statistics obtained from
Netherlands and Oregon, the legalisation of voluntary active euthanasia would inevitably
cause the slide down the slippery slope. Keown is a leading supporter of the slippery slope
argument in the case of Active Euthanasia. The claim is that allowing these practices will
lead to a shift towards increased instances of induced or assisted death in circumstances
where appropriate treatment or palliative care exists where the patient is not terminally ill,
17
H. B. Karibasamma W/o L. K. Kenchappa v. Union of India and others, (2013) 2 KarL.J. 263; See also Gian
Kaur’s and Aruna’s case.
18
Basheshar Nath v. C.I.T. , (1959) 1 S.C.R. 528.
19
Gian Kaur v. State of Punjab, 1996 2 S.C.C. 648.
20
Basheshar Nath v. C.I.T. 1(959) 1 S.C.R. 528.
21
Supra, note 4
22
Supra, note 5
23
Tania Sabastian, Legalisation of Euthanasia in India with Specific Reference to Terminally-ill: Problems and
Prespectives, 2 J. Indian L. & Soc’y 341 2010-11.
24
JONATHAN HERRING, MEDICAL LAW AND ETHICS pg. 524 (Oxford 5th ed. 2014) – “right of the
patient to choose to die must be counterbalanced against interest of society as a whole”; Also See Kesavananda
Bharti v. State of Kerala (1973) 4 SCC 225; “fundamental rights of the few must ‘subserve the common good’
as embodied in the Directive Principles, and that whenever the Legislature made a law to implement a Directive
Principle the court should up-hold it notwithstanding its inconsistency with any fundamental Rights, and
irrespective of the rule of harmonious construction as between different mandates of the Constitution”.

MEMORIAL FOR RESPONDENT

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where the patient is not ill at all and eventually where the competent patient has not provided
any consent at all. He cites statistics from Netherlands which show startlingly high incidence
of active euthanasia without consent. He also takes the view that safeguards in the Oregon
legislation (Death with Dignity Act, which legalized Physician-assisted suicide) have proven
to be inadequate and ineffective25.

Consent and Living Will as considered by the High Court

Furthermore it is submitted that in the present case, there is no unqualified proof of voluntary
informed consent that can be inferred as given by Rahul since the contents of the living will
are undisclosed and it was apparent that he was upset with the UK High Court order in the
first place. In such dubious and uncertain circumstances, a surrogate cannot ask his life to be
taken against state’s duty to preserve his life. Fundamental rights cannot override directive
principles of state policy.26
Moreover, in Common Cause v. Union of India27, the court has clearly held that “Living
wills” are not legally recognised in India on account of the high likelihood of misuse in the
Indian context of inheritance and succession28; therefore no consent can be construed from
the living will until a legislation which permits the same comes into force.

The Kerala High Court’s treatment of the issue in C. A. Thomas Master v. Union of India29
sheds light upon the issue; wherein the accused, a retired teacher of 80 years, wanted to
voluntarily put an end to his life after having had a successful, contented and happy life. He
stated that his mission in life had ended and argued that voluntary termination of one’s life
was not equivalent to committing suicide. The Kerala High Court held that no distinction can
be made between suicide as ordinarily understood and the right to voluntarily put an end to
one’s life. Voluntary termination of one’s life for whatever reason would amount to suicide
within the meaning of sections 306 and 309, IPC.

Further the public morality principle of ‘sanctity of life’ should not be overlooked. Article
21’s sanctity could not be emphasised more by the Gian Kaur judgment calling it a

25
SHAUN D. PATTINSON, MEDICAL LAW AND ETHICS (Sweet & Maxwell Ltd. 2006).
26
Kesavananda Bharti v. State of Kerala (1973) 4 S.C.C. 225.
27
Common Cause v. Union of India, 2014 5 S.C.C. 338.
28
Id.
29
210th Law Commission Report.

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“provision guaranteeing protection of life and personal liberty and by no stretch of

imagination can ‘extinction of life’ be read to be included in ‘protection of life’. Whatever
may be the philosophy of permitting a person to extinguish his life by committing suicide, we
find it difficult to construe Article 21 to include within it the ‘right to die’ as a part of the
fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21
but suicide is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of ‘right to life’.”30 The Aruna Shanbaug case also quotes Lord
Keith31 stating “sanctity of life is not an absolute one. For instance, it does not compel the
medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does
not, according to the express wish of the patient. It does not authorize forcible feeding of
prisoners on hunger strike. It does not compel the temporary keeping alive of patients who
are terminally ill where to do so would merely prolong their suffering. On the other hand, it
forbids the taking of active measures to cut short the life of a terminally-ill patient (unless
there is legislation which permits it).”32 Therefore, the Respondent state is of the view that,
until legislation is brought about, a plea for active euthanasia cannot be entertained on
unregulated humanitarian grounds. It will be advantageous to quote the following paragraphs
from Ratanlal & Dhirajlal’s Law of Crimes33
“Right to live: General – Every civilized legal system recognizes right to life. We are having
a written Constitution. There are certain basic rights which have been treated as fundamental
by the Founding Fathers of the Constitution. Article 21 is one of them. It declares that no
person shall be deprived of his life or personal liberty except according to procedure
established by law. Section 309 of the Indian Penal Code makes an attempt to commit suicide
an offence punishable with imprisonment up to one year or with fine or with both. Thus, right
to life is also considered to be a duty to live. Ordinarily, therefore, an individual has no right
to end his life. He has to perform his duties towards himself and towards the society at large.
Reduction of suffering - Right to live would, however, mean right to live with human dignity
up to the end of natural life. Thus, right to live would include right to die with dignity at the
end of life and it should not be equated with right to die an unnatural death curtailing natural
span of life” It is also submitted that the doctors are on the verge of a medical breakthrough
to find a cure for ALS and terminating his life in belief of cryonics which is a science fiction
and will remain so for the next 200 years or so is not prudent choice to make. Moreover, the

30
210th Law Commission Report.
31
Airedale N.H.S. Trust v. Bland 1993 A.C. 789.
32
See Aruna Shanbaug v. Union of India, para 67.
33
RATANLAL & DHIRAJLAL, LAW OF CRIMES pg. 1825-27 (Bharat Law House 25th ed. 2004).

MEMORIAL FOR RESPONDENT

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fact that Rahul had stabilised in between and has survived for two years since the last
euthanasia petition reinforces the saying “where there is life, there is hope.”
It is finally submitted that in Aruna Ramachandra Shanbaug v. UOI, the supreme court has
clearly held "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."

Thus, the current legal position accepted in India and UK is analogous with the preservation
of nature’s course, in consonance with natural law. All human beings, without exception,
both the innocent and the guilty, die when natural death happens34. One of the safeguards
that need to be carefully incorporated into the legislation is avoiding the slippery slope as it is
important to distinguish a patient who has the competence to make her own choice from
others who cannot indicate desires or the patients who fail to have desires at all. Thus any
affirmative approach towards the prospect of Active Euthanasia, needs to reconcile all such
momentous issues and can only be the by-product of legislative deliberation, which is exactly
the stand taken by the Court.35.
It is submitted that keeping in accordance with the SC guidelines in Aruna’s case, the
legislature as already floored the bill and it is in the legislative process. It is indeed
impossible to curb someone’s fundamental right without procedure established by law,
however as of this hearing, there is first of all no fundamental right to die and therefore no
right to active euthanasia and therefore no law can possibly violate a non-existent right.
Keeping in tune with decision in Girish Gokhale v. UOI36, there is no reason to interfere in
the matter at this stage with the on-going process when the Parliament is seized of the bill on
the subject sought to be agitated in this petition and accordingly dismiss this petition.

2. REEMA IS PUNISHABLE UNDER S.300 OF INDIAN PENAL CODE, 1860, IF

SHE ASSISTS RAHUL TO DIE.

34
Thomas Aquinas, Natural Law and Positive Law, FORDHAM UNIV. (Feb. 1, 2017, 8 PM),
http://faculty.fordham.edu/klima/Blackwell-proofs/MP_C45.pdf.
35
Tania Sabastian, Legalisation of Euthanasia in India with Specific Reference to Terminally-ill: Problems and
Prespectives, 2 J. Indian L. & Soc’y 341 2010-11.
36
Girish Gokale v. Union of India MANU/SCOR/34068/2016.

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Euthansia or mercy killing means and implies the intervention of other human agency to end
the life. Mercy killing is not suicide and an attempt at mercy killing is not covered by Section
309, I.P.C., it is homicide.37 Though in English Law "mercy killings" are treated as
manslaughter and this enables the Judge to reduce or extinguish the sentence, there is no such
parallel provision in Indian law. Thus mercy killing due to impairment of faculty is no
exception under the Indian Law.38

Moreover, as Devlin J put it in the trial of Dr Adams39, “If the acts done are intended to kill
and do, in fact kill, it does not matter if a life is cut short by weeks or months, it is just as
much murder as if it were cut short by years.” In R v. Woollin40, House of Lords outlined
requirements of murder in such a way that the fit uneasily with the doctrine of double effect.
Lord Steyn cited “the defendant recognised that death and serious harm would be virtually
certain to result from his voluntary act … may find it easy to infer that he intended to kill or
do serious bodily harm, even though he may not have had any desire to achive that result.”
Thus dismissing the doctrine of double effect as a valid defence.

A comprehensive reading of Section 300 of the IPC gives valid insight to the offense of
murder. Active Euthanasia is considered murder because it falls precisely within the
definition of Murder. Although Exception 5 to this Section provides for consent to be an
exception to Section 300, the mode of getting consent is in question along with the validity of
the consent obtained.

Exception 5 to Section 300, I.P.C. must receive a very strict non-liberal interpretation and in
applying the said exception the act alleged to be consented to or authorised by the victim
must be considered with a very close scrutiny.41 In applying the said exception, the courts
have consistently held the opinion that the act alleged to be consented to or authorized by the
victim must be considered under close scrutiny.42 Thus this Hon’ble Court needs to look into
the fact that Rahul’s consent through the ‘living will’ is not acceptable in any manner. This is
also a matter in which this Hon’ble Court needs to look into why the consent was given. He
could, in all possibility be misled by the facts that after being Euthanised, his body will be
cryopreserved after which he will be revived back to life, when in fact, such a process has

37
Maruti Shripati Dubal v. State of Maharashtra, (1987) Cr.L.J. 743.
38
Siddheswari Bora v. State of Assam, (1981) Cr.L.J. 1005 (Gau).
39
R v. Adams (1957) Crim. L.R. 356.
40
(1999) 1 A.C. 82.
41
RATANLAL & DHIRAJLAL, LAW OF CRIMES (Bharat Law House 25th ed. 2004).
42
Narendra v. State of Rajasthan (2014) 10 S.C.C. 248.

MEMORIAL FOR RESPONDENT

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never happened and is a science fiction as discussed above. Thus, the consent given to his
family by Rahul was based on a misconception of facts and reality.

Further, it is settled that those who attempt to commit suicide, even by way of Euthanasia and
Physician assisted suicide is presumed to be having sever stress and mental incapability.
Studies have shown that patients with ALS undergo situational to severe and chronic
depression from the onset of the disease and are given doses of anti-depressants43. This
depression can very well cause the drug addled mind of an ALS patient to think about suicide
and euthanasia upon a false promise of science fiction and hence might have given consent. 44

All global medical guidelines strongly direct the questioning of a patient’s ability to make
health care decisions under mental stress.45 Further, studies have concretely supported the
connection between mental disorder and suicide, suggesting that suicidal ideation in
terminally ill patients is a manifestation of undiagnosed, untreated mental illness46

3. APPELLANT SHOULD NOT BE ALLOWED TO BE KEPT IN CRYONIC

SUSPENSION ON HIS DEMISE IN FURTHERANCE OF THE ORDER OF THE
UK COURT.

3.1. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE ENFORCEMENT
OF THE UK HIGH COURT ORDER QUA CRYONICS.

The High Court has indeed righty disposed of the petition as not executable in India as it falls
under the exceptions in S.13 of the CPC which renders a foreign judgment inconclusive.47 It
is submitted that the UK High Court judgment was not given on merits as it needs to show
that the judges had considered the evidence48. With Rahul being upset with the order and the

43
Nazem Atassi, Amanda Cook, Cristiana M. E. Pineda, Padmaja Yerramilli-Rao, Darlene Pulley, And Merit
Cudkowicz, Depression in amyotrophic lateral sclerosis, NCBI, (Jan 31, 2017 10 AM).
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3155886/
44
NADEAU R. GENTLES, EUTHANASIA AND ASSISTED SUICIDE: THE CURRENT DEBATE pg. 727
(Stoddart Publishing 1995)
45
Informed Consent in the Operating Room, Ethics in Medicine, UNIVERSITY OF WASHINGTON SCHOOL,
OF MEDICINE, (Feb 10, 2017, 7 PM), https://depts.washington.edu/bioethx/topics/infc.html .
46
NADEAU R. GENTLES, EUTHANASIA AND ASSISTED SUICIDE: THE CURRENT DEBATE pg. 727
(Stoddart Publishing 1995).
47
M/s. Alcon Electronics Pvt. Ltd v. Celem s.a. OF fos 34320 Roujan, France & Anr. (2016) S.C.C. OnLine
S.C. 1444.
48
SETALVAD & ATUL M., CONFLICT OF LAWS pg. 205 (LexisNexis Butterworths Madhwa 2007).

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fact that his health had stabilised at that point, aspersions can be cast regarding his consent49
and even though he was in a position to apply as a petitioner and select the forum himself50
why was Helen approaching the court, thereby questioning the jurisdiction of the court.
Further, he was an Indian citizen who wanted to move back to India. Taking a decision on an
Indian citizen’s dead body which was most likely to be in India when the time for execution
of decree came, falls outside the jurisdiction of the UK High Court. In the Privy Council
decision in Satya v. Teja Singh51 upheld that a competent court is one having jurisdiction over
the parties and subject matter. A foreign court may give a judgment in rem provided that the
subject matter of the action is property whether movable is within the foreign country.52

It is also submitted that the judgment in-rem can be obtained only in matters relating to
property. Rahul’s deceased body cannot be treated as property, as held in the case of Moore
v. Regents of the University of California53that a person did not have property rights in his or
her body and that it would be inappropriate for the law to recognise the same. Keeping in
mind this US decision we can argue that the property approach would fail to protect interests
that the state has in dignity or privacy of a person.54
Therefore an order obtained against the will of Rahul, if executed by the Indian court would
serve no purpose. The nature of the present foreign judgment is not in rem as orders in the
nature of declaration of domicile of a person for the purpose of service process55 or a foreign
judgment on succession to property56 are not judgments in rem.

Law as to disposal of bodies

Further it is submitted that in Re: JS (Disposal of Body)57 it was held that the law in relation
to the disposition of a dead body emanates from the decision of Kay J in Williams v
Williams58 , which establishes that a dead body is not property and therefore cannot be

49
Id.– “A judgment by consent is on merits even if it contains no reasons.”
50
Raj Rajendra Sardar Moloji Nar Singh Rao Shitole v. Shankar Saran, A.I.R. 1962 S.C. 1737.
51
(1975) 1 S.C.C. 120.
52
R Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid, (1963) 3 S.C.R. 22.
53
(1990) 793 P. 2d 479 (Cal).
54
JONATHAN HERRING, MEDICAL LAW AND ETHICS pg. 467 (Oxford 5th ed. 2014)
55
Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 S.C.C. 351; “Well established proposition in private
international law that unless a foreign court has jurisdiction in the international sense a judgment delivered by
that court would not be recognised or enforceable in India”.
56
Duggamma v. Ganeshaya A.I.R. 1965 MYS 97.
57
(2016) E.W.H.C. 2859 (Fam)
58
(1882) L.R. 20 Ch.D. 659

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disposed of by will. The administrator or executor of the estate has the right to possession of
(but no property in) the body and the duty to arrange for its proper disposal. Supplementing
this UK decision with a recent High Court of Punjab and Haryana decision in Dalip Kumar
Jha v. State of Punjab59 where the High Court has prohibited the freezing of the body of
Ashutosh Maharaj indefinitely in the hopes that he may come back to life and has declared
that if there is no law regarding disposing of bodies then customs of the society had to
prevail, which say that a dead person’s body has to be cremated.60 Thus it can be safely
concluded that the order is not a decision in rem as the dead body of Rahul is not a property
and is against existing customs and usages in India with regards to disposal of dead body.
The reason given by the High Court saying “There is no law in this field of medicine” cannot
be construed as the Court is ignorant of law or that there is absolutely no legal material on the
subject matter of the issue. It was held in Y Narasimha Rao v. Venkata Lakshmi61 that “When
a foreign judgment is founded on the jurisdiction or on a ground not recognised by such law
(referring to customary or statutory law in force in the country), it is a judgment which is in
defiance of the law. Hence it is not conclusive of the matters adjudicated therein and
therefore unenforceable in this country.”
Customs are also law under Article 13(3) (a) of the Constitution and an unnatural
preservation of Rahul’s dead body in India would be against the public policy and morality
and would set a disastrous precedent in the country. As highlighted in the Dalip Kumar Jha
case even though there is no statutory law framework exists on disposal of bodies, the
keeping of a body in a freezer was contrary to the fundamental duty under Article 51A (h)
which requires the judges to have scientific temper and humanism and decided that the
disposal of body should be in accordance with customs, which are recognised to be burial,
immersion or cremation. Moreover, keeping a dead body without proper disposal whether in
cryonic preservation or any other manner is against the dignity of the dead person as well as
public decency. Furthermore a decision rendered by a court with no subject matter
jurisdiction is a decision given by an incompetent court and is therefore not conclusive and
need not be enforced by the Indian district courts.

59
(2014) S.C.C. Online P. &H. 20822
60
Express News Service, Ashutosh Maharaj case: If no law on disposal of bodies, customs of society should
prevail, says High Court, THE INDIAN EXPRESS, (Jan. 21, 2017, 10 PM).
http://indianexpress.com/article/india/ashutosh-maharaj-case-if-no-law-on-disposal-of-bodies-customs-of-
society-should-prevail-high-court-4412734/
61
(1991) 3 S.C.C. 451.

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3.2. THE HIGH COURT HAS NOT ERRONEOUSLY REJECTED THE PLEA FOR
CRYONIC SUSPENSION.

It is submitted that the Appellant is engaging this Hon’ble court for a very frivolous and
absurd idea in science and post mortem ‘life’. As Benjamin Franklin rightly said, "In this
62
world nothing can be said to be certain, except death and taxes." No one has ever, in the
history of mankind is known to have actually ‘cheated death’ and come back to life after
medical sciences have declared him to be dead in all understanding. The definition of death is
‘the permanent disappearance of all evidence of life’63 which reiterates the finality and
unambiguity regarding the one certain and inevitable aspect of human life.64 It is fact that
there is no law in this country with regard to Cryonics and Cryo-preservation of the human
body after death.

Although, the Anatomy Acts enacted by the states put to effect the donation of the human
body after death for study and research purposes by embalming, it should not be seen on the
same footing as Cryonics since these acts only govern the disposal of ‘unclaimed bodies’
which do not have any kith and kin claiming possessions to perform necessary rituals.
Rahul’s body on the other hand would legally belong to his family while being in cryonic
suspension; therefore there is no question of donating the body for medical research or
cadaver study. Even the Transplantation of Human Organs and Tissues Act does not provide
for any such transplant or preservation of the Human Body. There are very few organizations
around the world which engage themselves in the act of Cryonically preserving the human
body, but till date, no one has ever been revived by this method on being cryonically
suspended upon death, nor has the judiciary in any such country accorded legal recognition to
the practice of cryonics, in contrast to cryogenics.65

Hopes of technology and medical science improving to an extend that the human race can
revive itself back from the dead is a very far-fetched and obtuse ideology, based on which
laws can never be made. Therefore, where there is no law, there can be no right which can be

62
Letter from Benjamin Franklin to Jean Baptiste Leroy (Nov. 13, 1789), in 10 THE WRITINGS OF
BENJAMIN FRANKLIN 69 (Albert Henry Smyth ed., 1907).
63
Registrations of Births and Deaths Act, 1969 , S.2 (b), and Transplantation of Organs Act,1994 S.2 (e)
64
Dalip Kumar Jha v. State of Punjab and others (2014) S.C.C. Online P. & H. 20822
65
Frequently Asked Questions, ALCOR, (Jan 19, 2017, 1 AM). http://www.alcor.org/FAQs/faq01.html#revived
“No adult human has ever been revived from temperatures far below freezing. Cryonics patients are cared for in
the expectation that future technology, especially molecular nanotechnology, will be available to reverse
damage associated with the cryonics process.”

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interpreted as “no right without a remedy” – meaning that a right protects you only insofar as
you have a remedy for its violation.. Presently, there is no law providing a person with
remedy in case any wrong is committed to violate this right.

When we examine the Jurisprudence of this aspect, we find that John Locke in his ‘Second
Treaties of Civil Government’66 opined that there is an absence of freedom to do anything the
person wants, when there is no law in connection with such freedom. Although there is
personal liberty, this personal liberty is not at the expense of violation of other’s rights in the
absence of a law.

Religion, Faith, Spirituality and Culture

Moreover, in India the traditional faiths, spirituality and culture, irrespective of religion is one
that relies heavily upon the fact that death is imminent in one’s life and nature will take its
course. The whole question of bringing someone back from the dead is considered taboo in
all walks of society in our country. If the Court were to decide in favour of such a fallacy,
there is bound to be repercussions throughout the country as it is against public morality and
policy. It is a well-settled matter that the court will refrain from making any order, which is
against public morality and conscience. Here, what the petitioner is asking from the court is
enforcement of a judgment allowing for conducting such activities.

Contract- Invalidity

Furthermore, it is submitted that the contract made by the petitioner with “Re-birth Medical
Services” is void as they have made an invalid contract since there is no law with regard to
the same and it is against public morality and interest. The contract made here in India, is
void due to the following reasons.

i) It is a very uncertain agreement, as the actual revival of the person is uncertain.67 The
contract has been made for the cryonic preservation of Rahul in the hopes of bringing

66
JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT, Chapter VI Section 57(1690).
“So that, however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge
freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for
liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: but
freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every
other man's humour might domineer over him?) but a liberty to dispose, and order as he lists, his person,
actions, possessions, and his whole property, within the allowance of those laws under which he is.”
67
Indian Contract Act, Sec.29.

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him back to life. This is a very uncertain event. And such a contract made is void.68
ii) The bringing Rahul back from the dead is an impossible event, but the Appellants
have contracted for it with the agency regardless of its actuality. It is a contingent
contract being made on the happening of such an impossible event.69
iii) Though the contract is for a specific period of time of 12 years, there are no hopes of
reviving him back from the dead even if a cure for ALS is found in that time. Having
a contract based on an impossible event is void.70

Thus it is abundantly clear that the contract made by Rahul with Re-birth Medical Services is
void and cannot be upheld in any court. Therefore, it proves that the subject matter of the
contract, Cryonics, is an illegal, and absurd idea and is merely a theory. Such fiction should
not be entertained before this Hon’ble Court and should not be allowed practice in India.71

Customs of disposal

The procedure itself, which involves the cryonic preservation of a human, is very gruesome
and indecent, which even includes a provision for severing and preserving just the head, the
logical and biological future resuscitative possibility of a human from just the head being
laughably ludicrous. The dignity of the human body after death is disregarded completely. It
is an established point of law that, in the absence of a legislative vacuum, the law applicable
should be interpreted from the existing practices and customs.72

It is the state’s primary duty under the Directive Principles of State policy73 to protect the
public health and the fundamental rights correlates to a fundamental duty of the state to
provide the persons with a right to life and personal liberty. The inhibition against its
deprivation extends to all these limits and faculties by which life is enjoyed and even
prohibits the mutilation of the body or amputation of an arm or a leg or the putting out of an
eye or the destruction of any other organ of the body through which the soul communicates to
the world74

68
Id. Sec.32.
69
Id. Sec. 36.
70
Id.Sec.35.
71
Dalip Kumar Jha v. State of Punjab (2014) S.C.C. Online P. & H. 20822.
72
Dalip Kumar Jha v. State of Punjab (2014) S.C.C. Online P. & H. 20822.
73
Constitution of India, Article 39 (f) and 41-Protection of Health
74
Munn v Illinois – quoted in Kharak Singh’s case.

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Significant Common Law Treatment

Dalip Kumar Jha v. State of Punjab

As it was held in a similar case of freezing a human body, the Hon’ble High Court of Punjab
and Haryana in Dalip Kumar Jha v. State of Punjab held that

“We are firmly of the view and direct that in all such cases, where dead body of a person is
used for purposes other than a decent cremation/ burial, by the relatives and friends or where
the dead body is unclaimed, the State Government is obliged in law to provide necessary
facilities for its preservation and disposal in accordance with dignity and respect which the
person deserves and except in a case of establishment of crime to which person may have
been subjected or to ascertain the cause of death by scientific investigation, medical studies,
or to save the life of another living person, the dead body shall not be allowed used for any
other purposes.”75

Remy Mortinat’s case

A similar controversy came up for consideration before a French Administrative Court in a

famous case of Remy Mortinat76, in which, Raymond Mortinat had preserved the body of his
wife who died in 1984, inside a freezer with the hope that with scientific advancements, she
could be resuscitated and brought back to life in the future. The body remained in the freezer
for about 18 years when in 2002 Raymond Mortinat himself expired. As per his last wishes,
his son, the executor placed his body in the freezer too along with the body of the wife as
followers of the belief of 'Cryonics'. The local police took suo motto cognizance and prayed
before the Local Administrative Court to give a direction of burial with a plea that keeping of
a dead body in the freezer amounts to violation of a person's right to burial and is against the
public policy, public morality and public health. The local Court was of the opinion that even
if the last wishes of the deceased were taken into consideration, no person can be allowed to
disrespect a dead body by keeping it in a freezer under a belief, which was not supported by
logic or science.77 On Appeal, the Appellate Court went through the provisions of Article 878

75
Dalip Kumar Jha v. State of Punjab (2014) S.C.C. Online P. & H. 20822.
76
(Reference Legifrance.gouv.fr of Council of State No. 260307)
77
Dalip Kumar Jha v. State of Punjab (2014) S.C.C. Online P. & H. 20822.
78
European Convention for the protection of Human Rights and Fundamental Freedoms, Article 8– Right to
respect for private and family life.

MEMORIAL FOR RESPONDENT

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and 979, European Convention for the Protection of Human Rights and Fundamental
Freedoms, which seek to protect both religion and beliefs of a person. The Court also went
through local French laws, which prohibit any kind of disrespect to a dead body. The Court
was of a similar opinion that in a democratic society, limitations have to be placed in interest
of rights and freedoms of others, public safety, protection of health and morals. Even though
the last wish of the deceased was a manifestation of his belief and are generally honoured
after death, but it cannot triumph over the provisions of law. It would be foolish to expend
substantial resources on treatment that has only a faint chance of saving the life of a patient.
Extraordinary treatments or invasions like medicines, operations, treatments which cannot be
obtained or used without excessive expense, pain or other inconvenience or which used
would not offer a reasonable hope of benefit is to be considered as to whether it is
proportional to the disease or benefit of patient80, a test which cryonics clearly fails to meet.

Therefore, it is argued that the Hon’ble High Court, which Rahul approached, was in fact
correct in not adjudicating on such a matter which has no law in the country. Moreover, it is
against public morality, decency and interest, and violates all laid down principles of life and
liberty. Keeping in tune with the State’s primary duty to protect its citizens and the
concurring opinion in Cruzan, where Justice Scalia said "American law," he said, "has always
accorded the State the power to prevent, by force if necessary, suicide - including suicide by
refusing to take appropriate measures necessary to preserve one's life. . ."81

79
European Convention for the protection of Human Rights and Fundamental Freedoms, Article 9– Freedom of
thought, conscience and religion.
80
JONATHAN HERRING, MEDICAL LAW AND ETHICS pg. 522 (Oxford 5th ed. 2014)
81
Cruzan, 110 S. Ct. at 2859.

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REPLY TO PETITIONER 2

1. THE PUBLIC INTEREST LITIGATION IS NOT MAINTAINABLE UNDER

ARTICLE 32 IN THE SUPREME COURT OF INDIA.

The Public Interest Litigation filed by the NGO Petitioner 2 is not maintainable in this
Hon’ble Court for lack of locus standi. It was held in Kishore Samrite v. State of U.P82 that a
“public spirited person bona fide bringing petition in relation to violation of fundamental
rights.. should have some demonstrable interest or relationship with affected persons,
personally or for benefit of the public at large..”
Even in public interest actions a person must show injury in fact, casualty and redress ability
including instances of threat to the right or of an injury as held in K K Kochunni v. State of
Madras.83 Overly broad claims of abstract and speculative injuries to the general public will
not suffice.84 Petitioner (2) has contested the threat arising out of recent judgments like Aruna
85
Shanbaug which recognize the right to a dignified death and thereby legalized Passive
Euthanasia. But it is a clear and established principle that no judgment or order of a
competent court is pronounced in violation of any fundamental rights even if there is an
incidental violation of such a right.86 There is no ‘zone of interest’ in which the petitioner
falls as there is no statute regarding the issues raised.87 When there is no statute governing the
area of interest, where does the possibility of violation arise? Even if a particular right or
interest is construed as protected by law, a person may still have to show an actual injury or
harm to him or any class- collective or group.88

82
(2013) 2 S.C.C. 398.
83
(1959) Supp (2) S.C.R. 316
84
PUBLIC INTERST LITIGATION: RESTATEMENT OF INDIAN LAW § 3.1 p. 2 (Universal Law
Publishing 2011).
85
(2011) 4 S.C.C. 454
86
Naresh v. State of Maharashtra, (1966) 3 S.C.R. 744.
87
PUBLIC INTERST LITIGATION: RESTATEMENT OF INDIAN LAW § 3.1 p. 2 (Universal Law
Publishing 2011)
88
PUBLIC INTERST LITIGATION: RESTATEMENT OF INDIAN LAW § 3.1 p. 3 (Universal Law
Publishing 2011)

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2. ANY TYPE OF EUTHANASIA BEING PRACTISED IS NOT A VIOLATION

OF ARTICLE 21 OF THE CONSTITUTION.

The Constitution envisages considerable latitude to the Legislature and Executive in the
discharge of their constitutional or statutory functions and duties. In this view of the
constitutional scheme of governance, it would be inappropriate to permit the invocation of the
authority of the court for rendering advisory opinions on all and every matter of
governance.89 Since the matter is kept for legislative consent, and there are laws being
considered and being made at this point of time with regards to Euthanasia, this petition is
unnecessary at this point of time and cannot to be maintained before this Hon’ble Court. The
extent of intervention by courts will always be guided and informed by several principles of
separation of powers, but more importantly by the principle that the stated domain of the
courts is to guard against infringement of rights90 and not to become guardian against all
possible errors of judgment in governance. Often in matters relating to policies or measures
regarding use of material resources of the community or the interplay of science and
technology in the domain of agriculture or with human bodies, intricate questions of
infringement of rights may arise91. Policy choices and methods of dealing with such issues
may depend upon relevant information, data and institutional advice. Such fields thus may
not be the matters for ready or easy intervention by the courts.92
Moreover keeping in mind that the Supreme Court laid down guidelines to be followed in
cases of passive euthanasia in Aruna Ramachandra Shanbaug93, that is to be followed as law
until a legislative Act is passed, the questions of euthanasia being a fundamental right
violation has already been debated and deliberated upon and an appropriate judgment has
been pronounced. In light of these judicial and legislative developments this PIL seeking all
types of euthanasia to be “disallowed” is undermining the judiciary and legislature’s
competencies to analyze the various types of euthanasia and arrive with an appropriate
legislation. This Hon’ble court after much deliberation and having considered the issue of
euthanasia from the standpoints of both active and passive has come to the conclusion that

89
State of Himachal Pradesh v. A Parent, A.I.R. 1985 S.C. 910
90
State of J&K v. Ghulam Rasool, A.I.R. 1961 S.C. 1301 (mere breach of law is not violation of Article 14) ;
see the observations in Metropolis Theatre v. Chicago, (1913) 228 U.S. 61 at 69 (mere errors of Government are
not subject to judicial review).
91
Delhi Science Forum v. Union of India (1996) 2 S.C.C. 405.
92
PUBLIC INTERST LITIGATION: RESTATEMENT OF INDIAN LAW § 1.9 p. 2 (Universal Law
Publishing 2011).
93
(2011) 4 S.C.C. 454.

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passive euthanasia is valid whereas active euthanasia is illegal. Therefore the petitioner’s plea
to disallow passive euthanasia as well is baseless and aims to undo the hard work of the
courts and the government.
The grounds for disallowing euthanasia, however is based on the slippery slope and public
morality grounds94 and not religious. Article 25 grants every citizen a right to religious
beliefs and one’s views cannot be used to undermine the views of another. Under this
provision, a person is invested with freedom of conscience and religion. This freedom of
“conscience‟ is the absolute inner freedom of a person and gives him a right to have his own
beliefs and convictions. This belief authorizes a person to refuse medical treatment, if the
procedure or the material used in such treatment goes against the interest of his belief; even
though this denial leads to death of the person.95 The state has a duty to respect individual
autonomy, This means that individual autonomy should be coupled with public morality and
the responsibility of an individual to the society and in this case, upholding Rahul’s request
for active euthanasia would go against the society and public good. Further the religious
grounds stated by Petitioner (2) are baseless as there is literature that dharma shastras allowed
suicide, which is the taking of life96. However, religious grounds can never influence the
public policy of a secular country.

3. CRYONIC SUSPENSION SHOULD NOT BE ALLOWED TO BE

PRACTICED IN INDIA.

The Union of India as mentioned in the reply to the contention of Rahul Dixit, is opposing
Cryonics and other methods of preserving the human body after death. The NGO’s petition
with respect to this coincides with the Union’s intention to disallow such practices for the
various reason explained before this Hon’ble Court in Rahul’s matter. Thus the Union finds
no apt reason to reply specifically to this petition with respect to this question of Cryonics
raised by the Petitioner NGO, if otherwise this Hon’ble Court feels the need to hear the
statement of the Union again and passes such an order. Cryonic suspension is a science
fiction which gives false hope to those who are terminally ill. The fact that no one has woken

94
Tania Sabastian, Legalisation of Euthanasia in India with Specific Reference to Terminally-ill: Problems and
Prespectives, 2 J. Indian L. & Soc’y 343 2010-11.
95
Bineet Kedia and Bhupal Bhattacharya, The Limits of Autonomy of a Patient in Medical Treatment An
Overview, 9 IRJCJ 56 (2013); See also Aruna Shanbaug.
96
210th Law Commission of India.

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up till now is proof that something unnatural would never work. More than being a medical
fiction, Cryonics through its unbalancing of the traditional triad of life poses formidable
challenge to the major institutions of faith, health and justice. The In Re Glover case in the
United States showed a glimpse of the problems faced by the society if the concept of “death”
is altered and allegedly cheated.97 Since there is no law in the country dealing with disposal
of the bodies, the NGO petitioner’s claims have to be stalled until that time. There is a
possibility of having law, like in British Columbia is the only legal jurisdiction known to
cryonicists to have a law against cryonics98 or allowing for further research and development
of the concept before it can be applied on human beings. It also poses problems like The
determination of the status of life insurance proceeds from a policy on the freezee's life and
other testamentary and estate issues which fundamentally base many principles on the
“death” of a person.99

97
George P. Smith II, The IcePerson Cometh: Cryonics, Law and Medicine, HEALTH MATRIX, (Summer
1983), at 23.
98
British Columbia’s Anti-Cryonic Laws, (Jan 19, 2017 9 PM). http://www.cryocdn.org/law57.html
99
Daniel R. Spector, Legal Implications of Cryonics, 18 Clev.-Marshall L. Rev. 341 (1969)

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PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced & authorities
cited; this Hon’ble Court may be graciously pleased to adjudge and declare that:

1) Special Leave to Appeal under Article 136 of the Constitution of India against the
final impugned order of May 2015 passed by the Hon’ble High Court shall not be
granted by this Hon’ble Court;
2) The Public Interest Litigation filed by Petitioner (2) is not maintainable before this
Hon’ble Court.
3) Pass such order disallowing the Appellant to perform Euthanasia by passing such
order against the legality of Active Euthanasia.
4) Pass such order to not to allow the body of the Appellant to be Cryonically preserved
after death by passing such order making Cryo-preservation of the human body
illegal.
5) Pass such order stating that if the Appellant’s wife, assists him to die, it will amount
to charges under Section 300 of the Indian Penal Code.
6) Pass such other and further relief, as this Hon’ble Court may deem fit and proper in
the facts and circumstances of the case.

FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL

EVER PRAY.

Drawn by:

Settled by: _____________, Advocate

Filed by:

ADVOCATE FOR THE RESPODENT

__________

DRAWN ON:

FILED ON:

MEMORIAL FOR RESPONDENT