TEAM CODE - IRR.

04

( RESPONDENT )

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 RESPONDENT

COUNSEL APPEARING ON BEHALF OF RESPONDENT

 INTERNAL RANKING ROUND -2019 TC- IRR.04

Table of Contents
LIST OF ABBREVIATION.........................................................................................................3
INDEX OF AUTHORITIES.........................................................................................................4
STATEMENT OF JURISDICTION............................................................................................6
SUMMARY OF FACTS...............................................................................................................7
I. 7
II. 7
III. 7
IV. 7
VI 8
VII 8
STATEMENT OF ISSUES...........................................................................................................9
SUMMARY OF ARGUMENTS.................................................................................................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........................................................................................................................................15
WHETHER THE JAIL ADMINISTRATION IS LIABLE OR NOT?..................................15
ISSUE- 3.......................................................................................................................................16
WHETHER IRREGULAR FEEDING OF CHILD BY MOTHER LED TO THE DEATH
OF CHILD OR NOT?..................................................................................................................16
ISSUE- 4.......................................................................................................................................18
WHETHER THE MEDICAL OFFICER WAS NEGLIGENT OR NOT?............................18
PRAYER.......................................................................................................................................21

Memorial on Behalf of Respondent Page 2

 LIST OF ABBREVIATION

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
 INDEX OF AUTHORITIES

 CASES REFERRED

o State of Haryana vs. Smt. Santra, AIR 2000 SC 1888.

o Keshav Prasad Sharma vs. Indian Oil Corp & Ors.

o Gangadhara Palo vs The Revenue Divisional Officer (2011) 4 SCC 602.

o Mr. Swatanter kumar (Retd.) ACP v. Union of India.

o Union of India & Anr vs. Tarsem Singh (2008) 8 SCC 648.

o State of Andhra Pradesh vs. Challa Ramkrishna Reddy & Ors (2000) 5 SCC 712.

o Dr. A Jayasingh Rajamani vs. State Rep. by Inspector of Police.

o Smt. Sudha Gupta and Ors. Vs. State of Madhya Pradesh and Ors.

o M.P. Human Rights Commission vs. The State of M.P. and Ors. on 25 January, 2002
AIR 2003 MP 17.

o Achutrao Haribhau Khodwa vs. State of Maharashtra.

BOOKS REFERRED

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

2. Ratanlal & Dhirajlal, The Code of Criminal Procedure, as amended by the Criminal Law
( Amendment ) Act, 2013.
REPORTS

1. United Nations Congress on the Prevention of Crime and the treatment of offenders, held
at Geneva in 1955, and approved by the Economic and Social Council by its resolution
663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, United Nations
Humans Rights
2. National Immunization Survey.
3. World Health Organization Global Strategy for Infant and Young Child Feeding, Geneva,
Switzerland; WHO and UNICEF [United Nations International Children’s Emergency
Fund ].

Websites Referred

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

STATUTE REFERRED

1. Constitution of India.
 STATEMENT OF JURISDICTION

The Respondent 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.
 SUMMARY 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.

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.
 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 Irregular feeding of child by mother led to the death of child or not?

ISSUE- 4

Whether the Medical officer was Negligent or not?

 SUMMARY OF ARGUMENTS

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 not 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 jail administration is
not liable because the food provided to the infant was appropriate according to the guidelines of
SP.

And as per the research survey of [NICFS] conducted in January 2018 which showed the food
was appropriate and nutritious as per the guidelines.
 ISSUE- 3

WHETHER THE IRREGULAR FEEDING BY MOTHER LED TO THE DEATH OF

CHILD OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of Indus that the irregular feeding of
child by mother led to the death of child. As the same milk powder was provided to 25 other
children 2 months ago and they subsequently became healthy thereafter they started natural
feeding.

Also as per the survey conducted by [NICFS] in January 2018 for jails all over Shikhar Pradesh,
which showed that food quality was appropriate and nutritious as per the guidelines.

ISSUE-4

WHETHER THE MEDICAL OFFICER WAS NEGLIGENT OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the Medical officer was
not Negligent. Since, the medical officer performed all his duties with reasonable care and
knowledge.

The medical Officer sensed that due to the irregular feeding child suffered such problem and also
suggested to take the infant milk made from the milk powder used for infants.
 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 petition which has
been filed under Article 136 of Indus Constitution is not 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.

In the case of Keshav Prasad Sharma vs Indian Oil Corp.& Ors1, it was held that On the basis
of the judgments the learned counsel for the petitioner has submitted that the question of
prejudice is not relevant in proceedings under Section 319 C.R.P.C. We are of the opinion that it
may not be relevant at the stage of proceedings before the trial court under Section 319 C.R.P.C.
but it is certainly relevant to proceedings under Article 136 of the Constitution of India, which is
discretionary jurisdiction.

Article 136 of the Constitution of India is not a regular form of appeal at all. It is a residual
provision which enables the Supreme Court to interfere with any order of any court or tribunal in
its discretion and in exceptional circumstances. It is not a regular forum of appeal like Section
100 or Section 96 of the Code of Civil Procedure. Hence, the question of prejudice is
certainlyrelevant to proceedings in Article 136 of the Constitution of India.

1
Keshav Prasad Sharma vs. Indian Oil Corp.& Ors on 25 January, 2011
INTERNAL RANKING ROUND -2019 TC- IRR.04

Also, In the Case of Gangadhara Palo vs The Revenue Divisional Officer & 2 ... it was held
that the situation is totally different where a special leave petition is dismissed without giving
any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution
of India is a discretionary remedy, and hence a special leave petition can be dismissed for a
variety of reasons and not necessarily on merits. We cannot say what was in the mind of the
Court while dismissing the special leave petition without giving any reasons. Hence, when a
special leave petition is dismissed without giving any reasons, there is no merger of the judgment
of the High Court with the order of this Court.

It shall be noted that the court apart from the above-mentioned judgment possess reasons for the
dismissal of appeal. The reasons are as follows:

 The appeal was dismissed by High Court of Shikhar Pradesh because on the
grounds that it does not hold any public importance.
 According to a survey conducted by the ‘National Institute of Criminology and
Forensic Science’ in January 2018 for jails all over Shikhar Pradesh which
showed that food quality was nutritious as per the guidelines.
 There are no exceptional circumstances in the situation, which is the basic need of
Special Leave Petition.

In the Case of Union of India and Ors. V. Tarsem Singh 3it has been held by the hon’ble
Supreme Court that a normally belated service related claim will be rejected on the ground of
delay and lashes but continuous wrong is an exception to such rule. Where a service related
claim is based on a normally, a belated service related claim will be rejected on the ground of
delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is
sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is
cases relating to a continuing wrong. Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such continuing wrong creates a continuing
source of injury. Relief can be granted even if there is a long delay in seeking remedy.

2
Gangadhara Palo vs. The Revenue Divisional Officer & ... on 8 March, 2011
3
Union Of India & Anr vs Tarsem Singh on 13 August, 2008
Memorial on Behalf of Respondent Page 13
INTERNAL RANKING ROUND -2019 TC- IRR.04

Memorial on Behalf of Respondent Page 13

INTERNAL RANKING ROUND -2019 TC- IRR.04

 It shall be noted that there were no continuous wrong done on the part of
respondents. No loop holes were left while taking care of the administration
system of the jail. Thre are no chances pf exceptional circumstances arising. Even
the same milk powder was provided to 25 other children and they subsequently
became healthy.

Hence, the judgment of the High Court can be reviewed since it continues to exist, though the
scope of the review petition is limited to errors apparent face of record If, on the other hand, a
special leave petition is dismissed with reasons, however (it can be even of just one sentence),
there is a merger of the judgment of the High Court in the order of the Supreme Court.

Also In the case of Mr. Swatanter kumar (Retd.) ACP v. Union of India 4 it was held that the
Hon’ble Supreme Court against the above full bench Judgment, the operation of the same is not
stayed nor is it suspended by the Supreme Court pending disposal of the said appeals. Thus the
full bench Judgment, the petitioners cannot be granted any relief on the ground that the appeals
against it are pending in the SC as mere pendency of appeal does not operate as a stay of or the
suspension of the judgment.

4
Mr. Swatanter Kumar (Retd.) ACP v. Union of India

Memorial on Behalf of Respondent Page 14

 ISSUE-2

WHETHER THE JAIL ADMINISTRATION IS LIABLE OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of Indus that the Jail administration
was not liable because the food provided to the infant was appropriate according to the
guidelines of Shikhar Pradesh.

And as per the research survey of [NICFS] conducted in January 2018 which showed the food
was appropriate and nutritious as per the guidelines.

As the same milk powder was provided to 25 other children 2 months ago and they subsequently
became healthy which also showed that the medical officer was not liable.

In the case of State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors5 it was held that
the suit was contested by the state of Andhra Pradesh on two principal grounds, namely, that no
damages could be awarded in respect of sovereign functions as the establishment and
maintenance of jail was part of the sovereign functions of the state and, therefore, even if there
was any negligence on the part of the officers of the state, the state would not be liable in
damages as it was immune from any legal action in respect of its sovereign acts.

Also In the case of Dr. A. Jayasingh Rajamani vs State Rep. by Inspector of Police 6 it was
held that “A simple lack of care, an error of judgment or an accident, is not proof of negligence
on the part of a medical professional. So long as a doctor follows a practice acceptable to the
medical profession of that day, he cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice or procedure which the accused
followed.

5
6
State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors on 26 April, 2000
Dr. A.Jayasingh Rajamani : vs State: Rep. By Inspector Of Police on 11 September, 2015
 ISSUE- 3

WHETHER IRREGULAR FEEDING OF CHILD BY MOTHER LED TO THE DEATH

OF CHILD OR NOT?

It is humbly submitted before the Hon’ble Supreme Court of Indus that the irregular feeding of
child by mother led to the death of child. As the same milk powder was provided to 25 other
children 2 months ago and they subsequently became healthy thereafter they started natural
feeding.

The Medical officer was not negligent while performing his duties because he had used
reasonable care and precautions while treating the child. The medical Officer sensed that due to
the irregular feeding child suffered such problem and also suggested to take the infant milk made
from the milk powder used for infants.

Also as per the survey conducted by [NICFS] in January 2018 for jails all over Shikhar Pradesh,
which showed that food quality was appropriate and nutritious as per the guidelines.

As per the Standard Minimum rules for the treatment of prisoners 7 There shall be available
the services of one qualified medical officer. And as per the rules the quantity, quality,
preparation and service of food shall regularly inspected and Every prisoner as soon as possible
after his admission and thereafter as necessary, with a view particularly to the discovery of
physical or mental illness and the taking of all necessary measures.

Also as per the Proposition8 Prisoners in jail of Praveena are conferred all the rights of
prisoners. Also the jail is administered on the basis of the guidelines of government of Shikhar
Pradesh and the jail manual. Thus the medical officer was not negligent while performing his

7
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of
13 May 1977, United Nations Humans Rights.

8
IRR-2019, Moot Proposition
duties because he had used reasonable care and precautions while treating the child. And due to
irregular feeding by mother child suffered such problem.

In a research survey of data from the 2005 National Immunization Survey9, researchers
calculated that if 90% of infants were exclusively breastfed for 6 months, 911 deaths would be
prevented. In an earlier analysis of the costs of formula-feeding, other investigators found that,
compared to 1,000 infants exclusively breastfed for 3 months, 1,000 infants never breastfed
required 2,033 more office visits, 212 more days in the hospital, and 609 more prescriptions in
the first year.

“The advantages of breastfeeding for mothers are not as well studied as those for infants, but
there is adequate evidence to state that women who breastfeed are likely to have improved health
in the short-term, and are at lower risk of developing future diseases. The evidence of effects of
breastfeeding on maternal health suggest that breastfeeding protects the mother from many short-
and long-term health problems, and that breastfeeding exclusively and for longer durations result
in the most optimal maternal health.”10

In addition to sufficient breastfeeding duration, it is important to provide breast milk exclusively

to reduce the risk of infection and illness as this behavior reduces the infant’s exposure to illness-
causing deaths.

Thus it is submitted that the child did not died by the negligence of jail administration, but was
result of irregular feeding of child by mother.

9
2005 National Immunization Survey
10
World Health Organization. Global Strategy for Infant and Young Child Feeding. Geneva, Switzerland: WHO and
UNICEF; 2003.
 ISSUE- 4

WHETHER THE MEDICAL OFFICER WAS NEGLIGENT OR NOT?

It is humbly submitted before the Hon’ble supreme court of Indus that the Medical officer was
not negligent.

“A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part
of a medical professional. So long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence merely because a better alternative
course or method of treatment was also available or simply because a more skilled doctor would
not have chosen to follow or resort to that practice or procedure which the accused followed”.11

In the case of Smt. Sudha Gupta v. State of Madhya Pradesh and Ors. 12 It was held that It
must not be lost sight of that care is a matter of degree, but it is difficult to define the precise
legal standard of care required in all cases of negligence. The standard of care then is a question
of fact depending upon the circumstances of each case. In determining this standard what has to
be considered is as to how a reasonable and prudent man would behave under given
circumstances. Negligence is the omission to do something which a reasonable man guided upon
those considerations which ordinarily regulate the conduct of human affairs will do or doing
something which a prudent and reasonable man would not do. In the realm of negligence rigid
rules give right to avoidable injustice. The degree of competent care and skill therefore by which
the respondents are to be judged has to be such as may be reasonably expected from an average
person in his profession and from any person specially gifted or qualified. The burden of proving
negligence rests upon the person who asserts it. In medical negligence cases it is for the patient
to establish his case against the medical man and not for the medical man to prove that he acted
with sufficient care and skill. In all cases the facts proved must be sufficiently compelling to give
rise to an inference of negligence. A mere conjecture will be insufficient. No human being is
infallible and in the present state of science even the most eminent specialist may be at fault in

11
Dr. A Jayasingh Rajamani vs. State Rep. by Inspector of Police.
12
Smt. Sudha Gupta And Ors. vs State Of Madhya Pradesh And Ors. on 24 November, 1998
detecting the true nature of the disease condition. A case of serious fault where the diagnosis of
the disease was palpably wrong has to lead to an irresistible conclusion about negligence being
committed. That is to say if the mistake is of such nature that it has to imply absence of
reasonable skill and care regard having had to the ordinary level of skill in the profession, a
medical man may be guilty of negligence if he fails to attend to his patient with regularity and
promptitude which his patient's condition demands, but he can only be held liable if his lack of
attention leads to an avoidable deterioration of the patient's condition.

It may further be noticed that the petitioners have come up with a very grave charge of
negligence against the respondents in regard to non-providing of medical care, attributing the
death to such a negligence. A doctor cannot be held negligent simply because something went
wrong. He cannot be held liable for mischance or misadventure or for an error of judgment. The
liability can be fastened in case medical care provided is proved to fall below the standard of
reasonable competent medical practitioner in his field so much so that his conduct might be
deserving censor or is inexcusable. It was for the petitioners to give evidence of fact on which
they based their claim for the relief in regard to the compensation. It had to be established that on
the balance of probability the most likely cause of the death was the negligence on the part of the
respondents and not the negligence of any other person. Further, the facts proved must be
sufficiently compelling to give rise to an inference of negligence; a mere conjecture will be
insufficient. In the circumstances, therefore, even if on the balance of probabilities it can be
indicated that there was a breach of duty on the part of the respondents, the petitioners could not
succeed. If, on the other hand, the facts proved, only bring out a position of the petitioners being
able to say no more than that "a possible explanation is that the respondents failed in their duty"
but the materials brought on record do not indicate that it was a more probable cause of the
misbeing than any other in that event also the negligence cannot be taken to have been
established as the case cannot be deemed to have passed from the realm of conjecture to that of
legal inference.

Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong
gas during the course of anaesthetic will frequently lead to the imposition of liability and in some
situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility
to another may amount to negligence in certain circumstances. A consultant could be negligent
where he delegates the responsibility to his junior with the knowledge that the junior was
incapable of performing of his duties properly."13

In the case of State of Haryana v. V. Smt. Santra 14, AIR 2000 SC 1888 wherein a two Judge
Bench of the Apex Court laid down as under :

'Negligence' is a tort. Every Doctor who enters into the medical profession has a duty to act with
a reasonable degree of care and skill. This is what is known as 'implied undertaking' by a
member of the medical profession that he would use a fair, reasonable and competent degree or
skill. Where a person is guilty of Negligence as per no further proof is needed. The Medical
Officers entrusted with the implementation of the Family Program cannot, by their negligence
acts in not performing the complete sterilization operation, sabotage the scheme of national
importance."

Thus, it is submitted that the medical officer was not negligent while performing his duties
because he had used reasonable care and precautions while treating the child. The medical
Officer sensed that due to the irregular feeding child suffered such problem and suggested to take
the infant milk made from the milk powder used for infants.

13
M.P. Human Rights Commission vs The State Of M.P. And Ors. on 25 January, 2002AIR 2003 MP 17
14
State of Haryana V. Smt. Santra14, AIR 2000 SC 1888
 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 Petition is not Maintainable.

2. Jail administration is not liable as they have given the same treatment to the child as
given to others.
3. The quality of the milk powder & the food is appropriate as per the survey, conducted by
‘National Institute of Criminology and Forensic Science’ in January 2018 for jails all
over Shikhar Pradesh.
4. The Medical officer is not incompetent as he is performing his duty with best of his
experience & knowledge.

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 Respondent Shall Duty Bound Forever Pray.

Sd/-

( Counsel For the Respondent )