Assignment 7

ASMITA COLLAGE OF LAW
TEAM
J.NARIMAN
ASMITA COLLAGE OF LAW MOOT COART ASSOCIATION 2020-21

TEAM:JUSTICE NARIMAN
BEFORE THE HONORABLE HIGH COART

OF
SAURSHTRA
MEMORIA IN BEHALF OF PETITIONER
PIL NO. ___ OF 2020

UNDER ARTICLE 32 AND 226 OF THE CONSTITUTION OF INDIVA
LOK SWASTHA ABHIYAN ………………………………PETITIONEER

VS
STATE OF SAURASHTRA…………………………RESPONDENT
SANJAY PRIVATE HOSPITAL…………………………..RESPONDENT 2
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COMPANION
JUSTICES OF THE HON’BLE HIGH COURT OF SAURASHTRA
COUNSEL IN BEHALF OF PITITIONER
Page 1 of 18
COUNCIL IN BEHALF OF PITITIONER
TABLE OF CONTENTS
SR. No PARTICULARS PAGE. No
1 LIST OF ABBRIVATIONS 3
2 INDEX OF AUTHORITIES 4-5
Statues Referred
Books Referred
Other References
Legal Dictionaries
3 STATEMENT OF JURISDICTION 6-7
4 STATEMENT OF FACTS 8-9
5 STATEMENT IF ISSUES 10
6 SUMMERY OF ARGUMENTS 11-12
7 ARGUMENT ADVANCE 13-16
8 PRAYER 17-18
Page 2 of 18
LIST OF ABBRIVATIONS
& And
¶ Paragraph
§ Section
AIR All India Reporters
Anr. Another
Cr.P.C. Code of criminal Procedure
Ed. Edition
HC High court
Ors Others
SC Supreme court
SCC Supreme Court Cases
SCR Supreme Court Reporter
Vs./ v. Versus
J. Justice
Hon’ble Honourable

OF
SAURASHTRA
Page 3 of 18
PUBLIC INTEREST LITIGATION

(CIVIL) WRIT PETITION
ORIGINAL WRIT PETITION OF JURISDICTION
PIL NO. ___ OF 2020


VS
INDEX OF AUTHORITIES
STATUTES REFERRED
 Constitution of Indiva , 1949
 Indian medical council regulations ,2002
 Clinical establishment and regulation Act ,2012
 Indian penal code ,1860
 Clinical management protocol Covid-19
 Disaster management Act, 2005
BOOKS REFERED
Page 4 of 18
 Hospital and the law
 Justice PS Narayan law of appeals
 Indian Constitutional law by M.P Jain, 8th Edition
OTHER REFERENCES
 www. Indian kanoon .com
 www. Law street .com
 www. Last law .com
LEGAL DITIONARIES
 Aiyer P.R, Advanced Law Lexicon,(3rd ed.,2005)
 Oxford Advanced Learners Dictionary, (7th ed.,2008)
 Concise Law Dictionary 10 may 2018
 R gupta ’s popular dictionary of legal terms 22 September 2016
 Kamlesh chopra Law dictionary (fourth edition)
CITIES CITED
 Suo moto v. State of Gujarat ,WO PIL No. 42/2020
 Maneka Gandhi v. union of india :AIR 1978 SC 59

 S. Anand vs The state of Tamil Nadu on 2 July ,2012
 Jayakumar T.V. vs State of Kerala 30 July 2020 WP(C).No.15342 OF 2020
 Parmanand Katara (Pt.) v. Union of India
 P. Rathinam v. Union of India

OF
Page 5 of 18
SAURASHTRA

PIL NO. ___ OF 2020


VS
STATEMENT OF JURISDICTION
THE PETITIONER HAS FILED THE PUBLIC INTEREST LITIGATION IN THE

HON’BLE HIGH COURT OF JUDICATURE AT BOMBAI, IN THE MATTER OF LOK
SWASTHYA ABHIYAAN v. STATE OF SAURASHTRA &ORS. UNDER ARTICLE 226
OF THE CONSTITUTION OF INDIVA.
• ARTICLE 32 OF THE CONSTITUTION OF INDIVA
226. Power of High Courts to Issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise jurisdiction, to Issue to any
person or authority, including in appropriate cases, any Government, within those
Page 6 of 18
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement
of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause ( 1 ) to Issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause ( 1 ), without furnishing to such party copies of such petition and all documents in
support of the plea for such interim order.
And giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party
in whose favour such order has been made or the counsel of such party, the High Court
shall dispose of the application within a period of two weeks from the date on which it is
received or from the date on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on the last day of that period, before
the expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that period, or,
as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32

OF
Page 7 of 18
SAURASHTRA

PIL NO. ___ OF 2020


VS
STATEMENT OF FACTS
 In December, 2019 a worldwide pandemic broke out due to the contagious SARS-
CoV2 (Severe Acute Respiratory Syndrome Coronavirus-2) and the disease caused
by contracting this virus is called as COVID-19 (Corona Virus Disease).
 On 11th March 2020, World Health Organization (WHO) officially declared the
outbreak of Covid-19 as a global pandemic.
 Mr. Ganesh Gaitonde, resident of Bombai Age 61 years tested positive for corona
virus on 27th June 2020. He was admitted to the Sanjay Private Hospital,
considering the age factor and other medical conditions as he was having high
blood pressure.
Page 8 of 18
 He was admitted for 7 days in covid – 19 isolation ward and 3 days in intensive care
unit (ICU) as his condition was critical .
 The staff and the doctors in the hospital where not wearing proper PPE kit .
 Family members were asked to bring medicines from their own money which
where having no relevance to the illness of Mr Gaitonde such as B-complex, ZINIC
and many other multi vitamin medicines and some of which was available in there
own hospital .
 Patient was provided only with the bed and three times meal by the hospital .No
proper care was taken of the patient by the staff of the hospital.
 Mr Gaitonde where admitted in the hospital for 15 days then he died on 13th July
2020.
 Mr Gaitonde’ s family has paid 50,000/- as the deposit money for admitting the
patient and 2,00,000/- of the bill.
 But Some amount of bill was due so hospital detained the body of Mr Gaitonde .As
the bill was of 9,50,000/- which was not paid by the family of Mr. Ganesh
Gaitonde.
 This is the illegal detention of the body and of a person (Mr. Ganesh Gaitonde) by
the hospital .

OF
SAURASHTRA
Page 9 of 18

PIL NO. ___ OF 2020


VS
ISSUES RASED
1. Who is the necessary party here is it the Hospital or the Government in the petition?
2. Whether there is a violation of any legal and fundamental right as to have a decent
burial of the deceased Mr. Gaitonde as a citizen of Indiva?
3. Whether the Hon’ble High Court has the jurisdiction to entertain the said Writ
Petition/PIL and is the Writ Petition/PIL maintainable in the Hon’ble High Court?

OF
SAURASHTRA
Page 10 of 18

PIL NO. ___ OF 2020


VS
SUMMERY OF ARGUMENTS
1. Issue : Who is the necessary party here is it the Hospital or the Government in the
petition?
The Sanjay private hospital can be consider as the necessary party but there should be no
exception for the state Government of Saurashtra . If the state would have regulated the
hospitals properly then this incident may not take place . Private hospitals are profit making
organizations but it doesn’t give them authority to detain the body of a person illegally . The
state should have provided the hospital with the proper guidelines which should include
billing criteria .
2. Issue : Whether there is a violation of any legal and fundamental right as to have a
decent burial of the deceased Mr. Gaitonde as a citizen of Indiva?
There is a violation of the fundamental rights of Mr Gaitonde has been violated his dead body
was not surrendered by the hospital to his family Mr Gaitonde was the citizen of Indiva then
Page 11 of 18
there is a breach of fundamental rights according to Article 21 of the constitution of Indiva

which talks about the legal rights of a deceased person
3. Issue : Whether the Hon’ble High Court has the jurisdiction to entertain the said Writ
The PIL is maintainable in the Hon’ble high court of Saurashtra as the fundamental rights has
been violated of deceased Mr Gaitonde by Sanjay private hospital

OF
SAURASHTRA
Page 12 of 18

PIL NO. ___ OF 2020


VS
ARGUMENT ADVANCED
1. Issue : Who is the necessary party here is it the Hospital or the Government in the
petition?
The Sanjay private hospital can be consider as the necessary party but there should be
no exception for the state Government of Saurashtra . If the state would have regulated
the hospitals properly then this incident may not take place . Private hospitals are profit
making organizations but it doesn’t give them authority to detain the body of a person
illegally . The state should have provided the hospital with the proper guidelines which
should include billing criteria .
Page 13 of 18
The hospitals are charging exorbitant amount from the patient during this period proper
guidelines should be provided by the state government to the hospitals also in regard of the
bill or charges which are taken by the hospital
In fact, a few major hospitals demanded caution deposits running into lakhs from patients.
Many of them charged more than 50% of the treatment cost fixed by the government, in
excess,”
The petition demands treatment at a reasonable price in private hospitals to avoid severe
burdening of government hospitals in the state.
In a first, the State government has capped treatment costs in private hospitals for people
without medical insurance. For others, the capped prices will come into effect once they
exhaust their medical cover. The decision comes after several patients with COVID-19 and
other ailments highlighted the exorbitant cost of treatment at private hospitals
Three times more charges are taken by the hospitals specialy from the patients affected with
COVID-19
Suo moto vs State of Gujrat 14 may 2020

Disaster management Act 2005
The Epidemic Diseases Act 1897
2. Issue : Whether there is a violation of any legal and fundamental right as to have a
decent burial of the deceased Mr. Gaitonde as a citizen of Indiva?
There is a violation of the fundamental rights of Mr Gaitonde has been violated his dead
body was not surrendered by the hospital to his family Mr Gaitonde was the citizen of
Indiva then there is a breach of fundamental rights in accordance with Article 21 of the
constitution of Indiva which talks about the legal rights of a deceased person
Article 21 of the Constitution of India provides that no person shall be deprived of his life or
personal liberty except according to the procedure established by law. The ‘procedure’
mentioned in Article 21 has been read into the ‘due’ procedure by the Supreme Court
Page 14 of 18
in Maneka Gandhi vs. Union of India which means that procedure must be fair, just and
reasonable. Over the period of time, the Supreme Court has interpreted Article 21 to include
various rights within its fold. The Supreme Court in Kharak Singh vs. State of Uttar
Pradesh quoted Field, J. (in Munn v. Illinois) who defined “life” in the following words:
“Something more than mere animal existence. The inhabtation against its deprivation extends
to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the
destruction of any other organ of the body through which the soul communicates with the
outer world.”
It has framed the “right to life” as more than mere existence and as a right that includes living
with dignity. In P. Rathinam v. Union of India, the Supreme Court held that the word ‘life’ in
Article 21 means right to live with human dignity and the same does not merely connote
continued drudgery. The Article takes within its fold “some of the finer graces of human
civilization, which makes life worth living”, and that the expanded concept of life would
mean the “tradition, culture and heritage” of the person concerned.
Right to dignity is not only available to a living man but also to his body after his death was
articulated by the Supreme Court in Parmanand Katara (Pt.) v. Union of India. This was a
petition that challenged the method of execution of the death sentence by hanging under the
Punjab Jail Manual as inhuman and violative of Article 21 of the Constitution. The petitioner
pointed out the Jail Manual which required the body of a condemned convict to remain
suspended for a period of half an hour after hanging as violative of right to dignity.
Right to dignity is not only a right of living person but also of the person who is dead
irrespective of his/ her citizenship
Maneka Gandhi vs. Union of India

Kharak Singh vs. State of Uttar Pradesh
P. Rathinam v. Union of India
Parmanand Katara (Pt.) v. Union of India
Suo moto v. State of Gujarat ,WO PIL No. 42/2020
3. Issue : Whether the Hon’ble High Court has the jurisdiction to entertain the said Writ
The PIL is maintainable in the Hon’ble high court of Saurashtra as the fundamental
rights has been violated of deceased Mr Gaitonde by Sanjay private hospital
Page 15 of 18
Article 226, empowers the Hon’ble high courts to issue, to any person or authority, including
the government (in appropriate cases), directions, orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.
Article 226 in The Constitution Of India 1949
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
( 1 ), without
(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32
www.indiankanoon .com
Article 226 of the constitution of India 1949
Article 21 of the constitution of India 1949

OF
Page 16 of 18
SAURASHTRA

PIL NO. ___ OF 2020


VS
PRAYER
Wherefore, in the light of the factual matrix, issues presented for adjudication, contentions
raised, authorities relied upon, it is most humbly prayed, that this Hon’ble Court may be
pleased to find, adjudged, and declare that:
 To writ issue in the nature of mandamus or any other appropriate writ, order, direction
thereby directing the respondents to initiate speedy action against the Private
Hospitals who are withholding the dead bodies for want fir excessive medical charges
illegally.
 To declare that fundamental right has been violated of the deceased Mr. Gaitonde in
accordance with Article 21 of the constitution of indiva . And his burial
Page 17 of 18
 To declare the compensation by the Sanjay private hospital to the family of the
deceased
 Interim/ ad interim relief in terms of prayer clause (4) to be granted
AND/OR
Pass any order that it deems fit in the interest of Justice, Equity and Good Conscience. And
for this act of kindness, the Petitioners as in duty bound, shall humbly pray.
Counsels for the Petitioners
Page 18 of 18

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ASMITA COLLAGE OF LAW

ASMITA COLLAGE OF LAW MOOT COART ASSOCIATION 2020-21

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PIL NO. ___ OF 2020

LOK SWASTHA ABHIYAN ………………………………PETITIONEER

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S

COUNSEL IN BEHALF OF PITITIONER

SR. No PARTICULARS PAGE. No

2 INDEX OF AUTHORITIES 4-5

3 STATEMENT OF JURISDICTION 6-7

4 STATEMENT OF FACTS 8-9

6 SUMMERY OF ARGUMENTS 11-12

7 ARGUMENT ADVANCE 13-16

AIR All India Reporters

Cr.P.C. Code of criminal Procedure

SCC Supreme Court Cases

SCR Supreme Court Reporter

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PUBLIC INTEREST LITIGATION

PIL NO. ___ OF 2020

LOK SWASTHA ABHIYAN ………………………………PETITIONEER

 Constitution of Indiva , 1949

 Indian medical council regulations ,2002

 Clinical establishment and regulation Act ,2012

 Indian penal code ,1860

 Clinical management protocol Covid-19

 Disaster management Act, 2005

 Hospital and the law

 Justice PS Narayan law of appeals

 Indian Constitutional law by M.P Jain, 8th Edition

 www. Indian kanoon .com

 www. Law street .com

 www. Last law .com

 Oxford Advanced Learners Dictionary, (7th ed.,2008)

 Concise Law Dictionary 10 may 2018

 R gupta ’s popular dictionary of legal terms 22 September 2016

 Kamlesh chopra Law dictionary (fourth edition)

 Maneka Gandhi v. union of india :AIR 1978 SC 59

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PUBLIC INTEREST LITIGATION

PIL NO. ___ OF 2020

LOK SWASTHA ABHIYAN ………………………………PETITIONEER

THE PETITIONER HAS FILED THE PUBLIC INTEREST LITIGATION IN THE

• ARTICLE 32 OF THE CONSTITUTION OF INDIVA

226. Power of High Courts to Issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers,

(2) The power conferred by clause ( 1 ) to Issue directions, orders or writs to any

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PUBLIC INTEREST LITIGATION

PIL NO. ___ OF 2020

LOK SWASTHA ABHIYAN ………………………………PETITIONEER

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PUBLIC INTEREST LITIGATION

PIL NO. ___ OF 2020

LOK SWASTHA ABHIYAN ………………………………PETITIONEER

BEFORE THE HONORABLE HIGH COART

MEMORIA IN BEHALF OF PETITIONER

PUBLIC INTEREST LITIGATION