TEAM CODE: IRR.

04

(PETITIONER)

INTERNAL RANKING ROUND - 2019

MCC

GOVERNMENT NEW LAW COLLEGE, INDORE

BEFORE

THE HON’BLE SUPREME COURT OF INDUS

SPECIAL LEAVE PETITION No……..of 2019

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDUS, 1950

1. KARA NIVARAN FOUNDATION

2. MOTHER SEED CARE
FOUNDATION…………………………………………………..PETITIONERS

V.

STATE OF SHIKHAR PRADESH ………………………….……..RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

COUNSEL APPEARING ON BEHALF OF THE PETITIONER

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Table of Contents

LIST OF ABBREVIATIONS ............................................................................................. 3

INDEX OF AUTHORITIES ............................................................................................... 4
STATEMENT OF JURISDICTION .................................................................................. 6
STATEMENT OF FACTS ................................................................................................. 7
I. ........................................................................................................................................... 7
II........................................................................................................................................... 7
III. ........................................................................................................................................ 7
IV. ........................................................................................................................................ 7
VI. ........................................................................................................................................ 8
VII. ....................................................................................................................................... 8
STATEMENT OF ISSUES ................................................................................................. 9
SUMMARY OF ARGUMENT ......................................................................................... 10
ARGUMENTS ADVANCED ........................................................................................... 12
ISSUE-1 ............................................................................................................................. 12
WHETHER THE PETITION IS MAINTAINABLE OR NOT? .................................... 12
ARTICLE-136 Special Leave to Appeal by the Supreme Court – .................................. 12
ISSUE-2 ............................................................................................................................. 14
ISSUE- 3 ............................................................................................................................ 16
ALL-INDIA JAIL COMMITTEE ON JAIL REFORM : ............................................... 16
ISSUE-4 ............................................................................................................................. 19
WHETHER THE MEDICAL OFFICER WAS INCOMPETENT OR NOT? ............... 19
MEDICAL NEGLIGENCE:............................................................................................. 20
PRAYER ........................................................................................................................... 20

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LIST OF ABBREVIATIONS

AIR All India Report

Anr. Another

Art. Article

IPC Indian Penal Code

Ltd. Limited

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

PIL Public Interest Litigation

SP Shikhar Pradesh

NICFS National Institute of Criminology and Forensic Science

Nov. November

Vs. Versus

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INDEX OF AUTHORITIES

 CASES REFERRED

o N.Suriya Kala v. A.Mohan doss and Others (2007) 9 SCC 196.

o Indian Medical Association vs V.P. Shantha AIR 550, 1995 SCC (6) 651.

o Jacob Methew vs. State of Punjab (2005) 6 SCC 1.

o R.D. Upadhyay vs. Andhra Pradesh & others.

o Ranchod vs. State of Madhya Pradesh.

o Shri Rama Murthy v. State of Karnataka on 23 December, 1996.

o Murti devi vs. Delhi administration on 20 August 1997.

o State of Andhra Pradesh vs. Chella Rama Krishna Reedy.

o Vijay Kumar Bansal vs State of Haryana and others, Civil Petition no. 5804 of 2013.

o Subash Babu vs. State of Andhra Pradesh, AIR 2011 SC 3031: (2011) 7 SCC 616:JT
2011 (8) SC 483: (2011)7SCALE 2.

o Manish Goel vs. Rohini Goel, AIR 2010 SC 1099.

o Mathai Joby vs. George and ANR (2010).

o Nina Rajan Pillai and Others vs. Union of India and Others on 13 May, 2011.

BOOKS REFERRED

1. D.D. Basu Commentary on The Constitution of India, Vol. 3, 3138 (8 th ed.., Lexis
Nexis ).

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2. Ratanlal & Dhirajlal, The Code of Criminal Procedure, as Amended by the Criminal
Law (Amendment) Act,2013 , 22nd ed.

CONSTITUTION

1. Art. 136, Const. of India.

REPORTS

1. All-India Committee on jail Reform (1980-83), Volume 1, Bureau of Police Research

and Develpoment Ministry of Home Affairs, New Delhi 2003.
2. State Survey of Prison health Care, [ SSPHC ].

Websites Referred

 www.legalserviceindia.com
 www.sci.govs.in
 www.manupatra.com

STATUTE REFERRED

1. Constitution of India

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STATEMENT OF JURISDICTION

The petitioners have the honor to submit before the Hon’ble supreme court of Indus,
the memorandum for the appellant under article 136 (Special leave Petition) of the
constitution of Indus, 1950

Article -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
case or matter passed or made by any court or tribunal in the territory of Indus.

(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.

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STATEMENT OF FACTS

I.

Republic of Indus is a country where the democratic form of governance exists. It confers its
citizens various fundamental rights such as right to life, right to freedom of speech &
expression.

II.

A Woman named Roopmati aged 29 gave birth to a female child. She was incarcerated in
Praveena district of S.P. She was allowed to keep child with her in jail due her to the infancy
and inability to survive without mother.

III.

According to a survey, conducted by ‘NICFS’ in January 2018 for jails all over S.P. which
showed that food quality was appropriate and nutritious as per the guidelines. The state govt.
appointed a medical officer for the healthcare of the prisoners.

IV.

Roopmati had a pain in her abdomen and she was provided medical assistance by the medical
officer appointed in jail. Then after 10 days her child showed the symptoms of dizziness,
frequent cold, sneezing, dry & scaling skin, bloated stomach. The child was consulted to jail
medical officer and he said that due to irregular feeding child suffered such problem and
suggested to take the infant milk made from the milk powder used for infants. The jail
administration thereafter provided the infant milk powder thereafter the child was fed with it.

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V. The autopsy report of child revealed that she died of chronic malnutrition and mascular
dystrophy due to insufficient protein intake. Roopmati being bereaved by death of her child
was in anger against the jail administration alleged that the cause of death of her child was
inferior quality food given to her, the low quality milk powder and incompetency of medical
officer. Her allegation was supported by some other women prisoners also.

VI.

Also some other women prisoners went on hunger strike protesting against the jail
administration. In Nov. 2017 a research survey was conducted by [SSPHC] which showed
that in that year 112 women of jail of praveena were reported to have health issues due to
inferior food quality and irregular supply of food after that state govt. of S.P. issued
guidelines to the jail administration to improve the food quality and regularity in serving
food.

VII.

Concerned with the instant matter NGOs [MSCF] which work for the welfare of women and
child and [KNF] which work in the domain of prisoners rights and welfare, together filed a
PIL in the high court of S.P. bench at praveena but it dismissed the PIL on the ground that the
petition did not contained any matter of public interest. Aggrieved by this, the NGOs filed
SLP in S.C. of Indus and matter is presented before the hon’ble Supreme court of Indus for
hearing.

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STATEMENT OF ISSUES

ISSUE- 1

Whether the petition under article 136 is maintainable or not?

ISSUE- 2

Whether the jail administration is liable or not?

ISSUE- 3

Whether the inferior quality food, the low quality milk powder led to the death of child or
not?

ISSUE- 4

Whether the medical officer was incompetent or not?

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SUMMARY OF ARGUMENT

ISSUE- 1

WHETHER THE PETITION UNDER ARTICLE 136 IS MAINTAINABLE OR NOT?

It is humbly submitted before the Hon’ble Supreme court of Indus that the petition which has
been filed under article 136 of Indus constitution is maintainable.

Article -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
case or matter passed or made by any court or tribunal in the territory of Indus

(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.

ISSUE- 2

WHETHER THE JAIL ADMINISTRATION IS LIABLE OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the death of child of
Roopmati was inferior quality of food given to her, the low quality milk powder and
incompetency of medical officer.

The allegations were supported by other women prisoners also, the 2017 research survey
conducted by state survey of prison health care [ SSPHC ] presented the detiorating health
conditions along with other problems in jail ,which were not taken into consideration .

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ISSUE- 3

WHETHER THE INFERIOR QUALITY FOOD & THE LOW QUALITY MILK
POWDER LED TO THE DEATH OF INFANT OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the inferior quality
food & the low quality milk powder led to the death of infant.

The jail Administration by suggestion of medical officer, provided the infant milk powder
thereafter the child was fed with it. After 8 days in night at 3am the child died.

ISSUE-4

WHETHER THE MEDICAL OFFICER WAS INCOMPETENT OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the medical officer
was incompetent.

The child showed serious symptoms like dizziness, frequent cold, Sneezing, dry & scaling
skin , bloated stomach. On consultation with medical officer, the milk powder which is used
for infants was given to child & after 8 days the child died because of chronic malnutrition &
Mascular Dystrophy caused by inferior quality milk Powder.

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ARGUMENTS ADVANCED

ISSUE-1

WHETHER THE PETITION IS MAINTAINABLE OR NOT?

It is humbly submitted before the hon’ble Supreme Court of Indus that the petition1 which
has been filed under Article 136 of Indus Constitution is maintainable.

ARTICLE-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
case or matter passed or made by any court or tribunal in the territory of indus.

(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.

The Supreme Court observed with regard to scope of Article 136 that “Article 136 of the
Constitution is not a regular forum of appeal at all. It is a ”residual” provision which enables
the Supreme Court to interfere with judgment or order of any court or tribunal in India in its
discretion.” 2

Since, the High Court of Shikhar Pradesh Bench at Praveena dismissed PIL and Petition is
filed in Supreme Court of Indus Constitution under Article 136. Hence, The Supreme Court
may exercise “residual” provision and can interfere with judgment of Shikhar Pradesh Bench
at Praveena, maintaining Special Leave to Appeal filed by the Petitioner.

Public interest litigation can be termed as one where any interested person, in the welfare of
the people who is any disadvantageous position, knocks the doors of the court for the

1
Parul, Special Leave Petition, The Indian Lawyer, URL.
http://www.theindianlawyer.in/blog/2016/09/09/special-leave-petition/.
2
N.Suriya Kala v. A.Mohan doss and Others (2007) 9 SCC 196.

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protection of fundamental right of such section of disadvantage people. 3 It is well settled that
whenever there is a public injury or public wrong caused by the act of the state or public
authority which is contrary to the constitution or the law, any member of the public acting
bonafide and having sufficient interest can maintain action for redrassal of such public wrong
or public injury.

The petitioner has locus standi as there is element of genuine public interest involved. Since,
the food quality and other relatable issues have forced the woman prisoners to go for hunger
strike, also people at various places protested against jail administration. This clearly
indicates the public interest which was not recognised by the high Court of Shikhar Pradesh
bench at Praveena.

The jail administration was alleged to be the major cause of death of Roopmati’s child
violating article 21 of Constitution of Indus.

Since, no factor was taken into consideration by the High Court bench, this has led to the
violation of constitutional rights as well as grave injustice has been done. Since, power under
Article 136 is exercisable outside the preview of ordinary law to meet demand of justice. 4
Also there should be a question of law of general public importance or a decision which
shocks the conscience of the court are some of the prime requisites for grant of special leave 5.

As all the requisites for grant of special leave are hereby fulfilled, the in any case 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. 6

3
Vijay kumar Bansal v. State of Haryana and Others, Civil Petition No. 5084 of 2013 (O&M)(India).
4
Subash babu v. State of Andhra Pradesh, AIR 2011 SC 3031: (2011) 7 SCC 616: JT 2011 (8) SC 483: (2011) 7
SCALE 2.
5
Manish Goel v. Rohini Goel, AIR 2010 SC 1099.
6
Mathai Joby v. George and ANR (2010).
7
Dr. R.K. Bangia, The Law of Torts, [Twenty-Fourth Edition], 2017.

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ISSUE-2

WHETHER THE JAIL ADMINISTRATION IS LIABLE OR NOT?

It is Humbly submitted before Hon’ble Supreme Court of Indus that the Jail Administration is
liable. The cause of Death of child of Roopmati was inferior quality of food given to her, the
low quality milk powder and incompetency of medical officer.

The allegations were supported by other women prisoners also, the 2017 research survey
conducted by state survey of prison health care [ SSPHC ] presented the detriorating health
conditions along with other problems in jail ,which were not taken into consideration.

Vicarious liability:

Unlike the crown Proceedings Act, 1947 (England), we do not have any statutory provision
mentioning the liability of the state of India. Article 300 of our Constitution provides that the
union of India and the state govt. can sue and can be sued but the circumstances under which
that can be done have not been mentioned. According to Article 300, the union of India and
the state govt. can sue or be sued in the like cases as the sued if the constitution had not been
enacted. To know the present position we have, therefore, to go back to the pre-constitution
days.

The govt. of Indus Act, 1935 also recognizes the position prevailing before the passing of the
act to continue. Similar provision is also found in the govt. of Indus act, 1915 and 1858. We
have, therefore, to see the position prevailing before 1858 when administration of the country
was in hands of the east Indus company. Apart from being responsible for the administration,
the east Indus company. Apart from being responsible for the administration, the east Indus
company traded on its own account.7

7
Dr. R.K. Bangia, The Law of Torts, [Twenty-Fourth Edition], 2017.

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In the case of Rajan Pillai’s death occurred while he was in judicial custody. There is both a
constitutional and a legal obligation of the State, in terms of Article 21 of the Constitution, to
protect the life and liberty of every inmate of a prison. The liability of the State to
compensate the victim and/or the family of the victim for its failure to ensure such protection
has been explained in several decisions of the Supreme Court and the High Court.8

Although, the child was not the prisoner but was living in prison and hence was the
responsibility of the state and jail administration.

“The Superintendent of the jail should take all the steps to produce the prisoners to the
Hospitals outside the jail for the purpose of examination and treatment whenever necessary as
per the opinion of the Jail Doctors and for this purpose also, the same procedure may be
followed regarding police escort as stated above”9.

Since, there were no crucial steps taken by the jail administration or superintendent regarding
the serious health conditions of the child also she was not referred outside the jail for the
purpose of examination and treatment. Such a big loophole has caused to the death of the
infant, if serious steps and guidance were taken by the medical officer she would have been
saved.

“All the hospitals under the control of the Government who are expected to treat the prisoners
either in the normal cases or in special cases may be strictly instructed to treat the prisoners
either as in-patients or otherwise as per the recommendation of the jail Doctors and the
Superintendent of the Jail without referring them back to the jail for treatment”10.

“The State cannot subject a prisoner to any greater loss of liberty than that which is provided
by law. The detention in prison is brought about by procedure established by law but that by
no means permits the jail authorities to subject prisoners to any greater risk to their life other
than the actual loss of physical liberty. In other words, the state has to ensure that no prisoner

8
Nina Rajan Pillai and Others v. Union of India and Others on 13 May, 2011
9
Supra,63.2,6
10
Supra, 63.2.7

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is deprived of the minimum standard of health and safety while in jail. As regards availing of
medical facilities, the prisoner has no choice regarding the quality or type of treatment. The
liability of the State, therefore, is even greater.”11

Since, the liability of state is higher and so is of jail administration. If the child had been
properly diagnosed and treated a life could have been saved.

This concludes that jail administration is liable for the death of the child.

ISSUE- 3

WHETHER THE INFERIOR QUALITY FOOD, THE LOW QUALITY MILK

POWDER LED TO THE DEATH OF CHILD OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the inferior quality
food & the low quality milk powder led to the death of infant.

The jail Administration by suggestion of medical officer provided the infant milk powder
thereafter the child was fed with it. After 8 days in night at 3am the child died. Also the
autopsy report of child revealed that she died of chronic malnutrition and muscular dystrophy
due to insufficient protein intake.

ALL-INDIA JAIL COMMITTEE ON JAIL REFORM 12 :

1. Mulla Committee stated that every Central and District prison should have 2 or more
medical officers.
2. At every prison where there is sufficient large number of women prisoners (say 25 or
above) a whole time lady medical officer should be appointed. At other prisons
arrangements should be made for part time lady medical officers.
3. Proper medical facilities should be provided in sub-jails.

11
Supra,75
12
All-India Committee on Jail Reform (1980-83), Volume1, Bureau of Police Research and Development
Ministry of Home Affairs, New Delhi 2003.

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4. The medical officer in charge of prison hospitals should, in accordance with prison
rules and in consultation with the superintendent work out criteria for the prescription
of special medical diet to sick prisoners, and these criteria in the special medical diet
should be reviewed from time to time.
5. Proper arrangements should be made for the care and treatment of old, infirm and
debilitated prisoners in a separate ward.
6. Every prison should be get thoroughly inspected by the local public health officer
periodically.
7. Infant formula is a product based on milk of cows or other animals or a mixture
thereof and/or other ingredients which have been proven to be suitable for infant
feeding. The nutritional safety and adequacy of infant formula shall be scientifically
demonstrated to support growth and development of infants. All ingredients and food
additives shall be gluten-free.
8. Infant formula prepared ready for consumption in accordance with instructions of the
manufacturer shall contain per 100 ml not less than 60 kcal (250 kJ) and not more
than 70 kcal (295 kJ) of energy.

It is humbly submitted before the hon’ble Supreme Court of Indus that the jail of Praveena
had only one medical officer for 238 women prisoners along with 326 children. Also, it shall
be taken into consideration that for women prisoners’ one male medical officer was
appointed by the state. Along with the absence of proper medical facilities, the male medical
officer failed to take crucial steps like informing Superintendent and special medical diet to
sick prisoners was also not provided.
There were no proper arrangements for the care and treatment of the child who died of
serious disease like muscular dystrophy and chronic malnutrition. Nothing would have ever
gone wrong if proper infant formula was used by the jail administration.

In the case of R.D. Upadhyay v. State of Andhra Pradesh and Ors.13 it was held that - In
Madhya Pradesh, There is provision for special ration above and beyond the normal
labouring ration for nursing mother and for supplementary cow's milk for children under the
age of 1 year not receiving sufficient milk from the mother. Provision is also made for ration
for children from 12-18 months and from 18-24 months.

13
R.D Upadhayay v. State of A.P. and Others on 13 April, 2006.

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Instead of cow’s milk, the medical officer provided inferior quality of milk which was not
suitable for the body type of child and as a result she died.

The best interest of the child has been regarded as a primary consideration in our
Constitution. The National Institute of Criminology and Forensic Sciences conducted a
research study of children of women prisoners in Indian jails. 14

The two important features of the study brought to the notice of all Governments in February
2002 are:

1. The general impression gathered was the most of these children were living in really
difficult conditions and suffering from diverse deprivations relating to food,
healthcare, accommodation, education, recreation, etc.
2. No separate or specialized medical facilities for children were available in jails.

It shall be noticed by the Supreme Court of Indus that “According to Research survey in
November 2017 of State survey of prison health care [SSPHC] it was found that in that
year 112 women of jail of Praveena were reported to have health issues due to inferior food
quality and irregular supply of food and after that the state government of Shikhar Pradesh
issued guidelines to jail administration to improve the food quality and regularity in serving
food.”

Also because of inferior food quality given to the prisoner in the jail of Praveena, Roopmati
was diagnosed with gastritis.

Important suggestions which were given by the institutes are as follows:

1. In many States, small children were living in sub-jails which were not at all equipped
to keep children. Women prisoners with children should not be kept in such sub-jails,
unless proper facilities can be ensured which would make for a conductive
environment there, for proper bio-psycho-social growth of children.
2. Medical care for every child living in a jail has to be fully ensured. Also, in the event
of a women prisoner falling ill herself, alternative arrangements for looking after the
child should be made by the jail staff. 15

14
Supra, Para 1.

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It shall be noted that this was the disregard of Supreme Court’s order as there were no proper
facilities available and also there was lack of medical care in every possible way.

ISSUE-4

WHETHER THE MEDICAL OFFICER WAS INCOMPETENT OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the medical officer
was incompetent.

The child showed serious symptoms like dizziness, frequent cold, Sneezing, dry & scaling
skin , bloated stomach. On consultation with medical officer, the milk powder which is used
for infants was given to child & after 8 days the child died because of chronic malnutrition &
Mascular Dystrophy caused by inferior quality milk Powder.

NEGLIGENCE: The Law of Torts, Ratanlal & Dhirajlal Twenty-fourth Edition 2002, edited
by Justice G.P. Singh. It is stated at Para 441-442 ___ "Negligence is the breach of a duty
caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs would do, or doing
something which a prudent and reasonable man would not do. Actionable negligence consists
in the neglect of the use of ordinary care or skill towards a person to whom the defendant
owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered
injury to his person or property. The definition involves three constituents of negligence:

A legal duty to exercise due care on the part of the party complained of towards the party
complaining the former's conduct within the scope of the duty; (2) breach of the said duty;
and (3) consequential damage. Cause of action for negligence arises only when damage
occurs; for, damage is a necessary ingredient of this tort.16

It was a breach of duty committed on the part of medical officer because:

1. He failed to take the steps which a reasonable man would have taken like, to send the
child for special treatment.

15
Supra,
16
Jacob Mathew v. State of Punjab and Anr on 5 August, 2005.

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2. A prudent man would have taken crucial steps like recognizing symptoms, proper
diagnosis and management of medical facilities.
3. The child had the right of proper health care facilities and because of medical officer’s
neglect towards his duty and responsibilities the child died.

MEDICAL NEGLIGENCE:

Symptoms of Mascular dystrophy are not recognized by medical officer which shows
incompetency of medical officer.

In the case of Jacob Mathew v. State of Punjab17 it was held that- Criminal complaints are
filed against doctors alleging commission of offences punishable under section 304A or
section 336/337/338 of the IPC alleging rashness or negligence on the part of doctors
resulting in loss of life or Injury (of varying degree) to the patient.

Also In the Case of Rama Murthy v. State of Karnataka18, it was held that- The Mulla
Committee founded, First, the prisoners do not enjoy the access to medical expertise that free
citizens have. Their incarceration places limitations on such access; no physician of choice,
no second opinions, and few if any specialists.

Secondly, because of the conditions of their incarceration, inmates are exposed to more
health hazards than free citizens. Prisoners therefore, suffer from a double handicap.

17
Supra Para 13.
18
Shri Rama Murthy v. State of Karnataka on 23 December, 1996.

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PRAYER

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to adjudge that:

1. The Special Leave Petition by [ MSCF ] and [ KNF ] is Maintainable.

2. Compensation shall be paid by the jail administration to Roopmati.
3. Jail administration shall be held liable for being negligent for the following reasons:
3.1 Appointing male officer for women prisoners.
3.2 Appointing incompetent medical officer.
3.3 For poor supervision.
3.4 For poor health and food facilities.
4. License of Medical Petitioner should be cancelled.

And pass any other order, Direction, or Relief that it may deem fit in the best Interests
of Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

Sd/-

( Counsel For the Petitioner )

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