MOOT COURT 2021-2022

IN THE HONOURABLE SUPREME COURT OF INDIA

AIR 2011 SC 1290

&
(2011) 4 SCC 454

IN THE MATTER OF:

ARUNA RAMCHANDRA SHANBAUG …. PETITIONER

Vs.
UNION OF INDIA....................................RESPONDENT

UPON SUBMISSION TO THE HONOURABLE JUDGES OF

SUPREME COURT OF INDIA, NEW DELHI.

MEMORIAL ON BEHALF OF THE PETITIONER

COUNSEL FOR PETITIONER

 CHENNAI Dr. AMBEDKAR GOVERNMENT LAW COLLEGE
Pattaraiperumbudur, Thiruvallur – 631 203

MEMORANDUM OF PETITIONER

SUBJECT : MOOT COURT

SUBMITTED BY : M.MANJULA.

REGISTER NO. : 319A0077

CLASS : 3rd YEAR LLB – B‘ Sec

ACADEMIC YEAR : 2019-2020

SUBMITTED TO : Smt. E. IHSAAN MEERA

ASSISTANT

PROFESSOR

FACULTY – IN – CHARGE FOR MOOT COURT

MEMORANDUM OF
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TABLE OF CONTENTS

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TABLE OF CONTENTS

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LIST OF ABBREVATION

AIR All India Report

Art Article

HC High Court

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme court reports

UT Union Territories

UOI Union of India

W. P Writ Petition

Vs. Versus

& And

GC Grand Chamber

PVS Permanent Vegetative State

r/w Read With

u/s Under Section

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INDEX OF AUTHORITIES

JOURNAL ARTICLES

1. Article on “Right to die”, by Sandeep Rana.

2. Article on “An India perspective -Euthunasia”, by Vinod K Sinha.
3. Article on “Right to Life vs Right to Die, by Santhosh K Chatravadi.

STATUTES
1. The Constitution of India, 1950

BOOKS
1. The Constitution of India, Bare Act 2019, Universal Law Publications.

2. Constitutional Law of India by Durga Dass Babu 2011, Central Law Agency.

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CASE LAW

1. Charan Lal Sahu vs. Union of India, 1989 SCR Supl. (2) 597
2.Common Cause (A Regd. Society) v. Union of India, AIR 2018
SC 1665
3. Gian Kaur v. State of Punjab, AIR 1996 SC 1257
4. Maruti Shripati Dubal v. State of Maharashtra, 1987 (1)
BomCR 499, (1986) 88 BOMLR 589
5. R.C. Cooper v. Union of India, AIR 1970 SC 564
6. State of Himachal Pradesh and another v. Umed Ram Sharma
and others, 1986 AIR 847, 1986 SCR (1) 251
7. State of Kerala vs. N.M. Thomas, 1976(1) SCR 906

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STATEMENT OF JURISDICTION

The Counsel for the Petitioner, representing and endorsed the pleadings before the
Hon’ble Supreme Court of India. The petitions invoke its writ jurisdiction under
Article 32 of the Constitution of India in which the Hon‟ble court has the jurisdiction.
This Memorandum is sets forth the facts and the laws on which the claims are based
on the contentions and arguments.

Article 32 in The Constitution of India 1949

Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution

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STATEMENT OF FACTS

1. The petitioner in this case, Aruna Ramchandra Shanbaug used to work as a Nurse in King
Edward Memorial Hospital, Parel, Mumbai. On the evening of the 27th November 1973 a
sweeper of the same hospital attacked her and he wrapped her neck with a dog chain and
yanked her back with it. The sweeper also tried to rape her but when he found out that she was
menstruating he sodomized her. To prevent her from moving or creating any chaos, he twisted
that chain really hard around her neck.
2. Next day, a cleaner found her body lying on the floor unconscious with blood all over. It was
believed that the supply of oxygen to the brain stopped because of strangulation by the chain
and hence the brain got damaged. This incident caused permanent damage to her brain and led
her into a permanent vegetative state (PVS).
3. Thirty six years had lapsed since the said incident. She had been surviving on mashed food
and could not move her hands or legs. It was alleged that there is no possibility of any
improvement in the condition and that she was entirely dependent on KEM Hospital, Mumbai.
4. This was a written petition filed under Article 32 of the Constitution, alleging that there is no
possibility for her to revive again and get better. So she should be allowed to go with the
passive euthanasia and should be absolved from her pain and agony.

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STATEMENT OF ISSUES

ISSUE I:
Whether Right to life under Article 21 of the Constitution includes Right to die with
dignity.

ISSUE II:
Whether court is the competent authority to decide the question of whether a person should be granted
passive euthanasia?

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SUMMARY OF ARGUMENTS

ON MAITAINABILITY:

ISSUE I: Whether Right to life under Article 21 of the Constitution includes Right to die with
dignity?

It is submitted that every person has an inherent right to die with dignity. Right to die with dignity is
a supplementary feature of Article 21 of the Constitution. It is also submitted that right to die without
pain is an important aspect of integrity. The fuel to individual autonomy or self-sufficiency is a part of
right to privacy which is a fundamental right and which also forms a part of fundamental concept of
liberty.

ISSUE II: Whether court is the competent authority to decide the question of whether a person
should be granted passive euthanasia?

It is humbly submitted that based on the principle of parens patrie, court should be competent authority
to grant the permission of passive euthanasia when the patient is incapable to make such decision
owning to is perment vegetative state of irreversible coma.

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ARGUMENTS ADVANCED
ISSUE I:Whether Right to life includes Right to die with dignity?

It is submitted that every person has an inherent right to die with dignty. Right to die with dignity is a
supplementary feature of Article 21 of the Consititution. It is also submitted that right to die without pain is
an important aspect of integrity. The fuel to individual autonomy or self-sufficiency is a part of right to
privacy which is also forms a part fundamental concept of liberty.

-CONCEPT OF EUTHANASIA

Euthanasia is the painless killing of a patient suffering from an incurable disease or irreversible coma.
Euthanasia is of two types active and passive. Active euthanasia is administering the patient with lethal
substance or injection which leads to causing death. Whereas, passive euthanasia is removal of life
supporting machines or withholding medical treatment which results in death of the patient. Distinction
can also be made between voluntary euthanasia and non-voluntary euthanasia. Voluntary euthanasia is
when consent is taken from the patient beforehand, whereas, non-voluntary where the patient is not in a
situation to give consent and therefore euthanasia is administered without the patient’s consent or
knowledge.

Active Euthanasia is illegal all around the globe except in certain countries because
active euthanasia is taking specific steps to cause the patient's death, such as injecting the patient with some
lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the
person instantaneously and painlessly dies in this deep sleep. The key difference is that in passive
euthanasia the doctors are not actually killing the patient, they are merely not making attempts to save him.
Countries like Netherlands has legislations named Termination of Life on Request and Assisted Suicide
(Review Procedures) Act, 2002, which allows physician assisted suicide. Belgium has also legalised
assisted suicide in 2002.

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[ARGUMENTS ADVANCED]
- Right to life includes Right to quality of life or Right to live a dignified life
It is submitted that in the case of State of Himachal Pradesh and another v. Umed Ram Sharma
and others, it was held that Right to life does not merely mean a physical existence but also includes quality
of life and the richness and fullness of life. In the case of Maruti Shripati Dubal v. State of
Maharashtra that placed reliance on R.C. Cooper v. Union of India, it was held that what is true for one
fundamental right is also true for another fundamental right and fundamental right contain positive as well
as negative aspect. For example, freedom of speech and expression includes freedom not to speak and
similarly, the freedom of association and movement includes freedom not to join any association or move
anywhere. Therefore, the case of, Maruti Shripati, the Bombay High Court decided that logically it
must follow that a right to live includes a right not to live or not to forced to be live. The Court also held
that the desire to die is not unnatural, it is as natural as the desire to live. In the case of Gian Kaur v. State
of Punjab4 while discussing whether the Right to life includes a right to die, the Court had held that the
sanctity of life needs to be kept in mind. Right to live is a natural right and committing suicide is an
unnatural termination and extinction of life. The Court then went on to hold that a permanent
vegetative state or terminal illness is not in consonance with the principle of sanctity of life. It s to be
noted that since since existence in PVS is not a benefit to the patient, the principle of sanctity of life is no
longer an absolute one.

The constitutional bench further held that this conception includes right to live with dignity,
which correspondingly includes a right to live with dignity until death, which means a right to
die with dignity. Therefore, right to die with dignity should not be confused with Right to die
an unnatural death by curtailing one’s life. It is submitted that in the present case, the person in
permanent vegetative state is not living a dignified life. He has no quality of life which means
richness and fullness of life. Logically speaking his natural life has come to an end and he is
being fed and breathed by machines. Therefore, putting an end to his misery would not amount
to murder but to die with dignity.

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[ ARGUMENTS ADVANCED]

The Court then went on to state that:

“A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state
that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This
category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with
dignity, when death due to termination of natural life is certain and imminent and the process of natural
death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the
process of natural death which has already commenced. The debate even in such cases to permit physician
assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support
the view of permitting termination of life in such cases to reduce the period of suffering during the process
of certain natural death is not available to interpret Article 21 to include therein the right to curtail the
natural span of life”

-Prolonging life is not in the best interest of the patient.

It is humbly submitted that being in 21st century, the medical advancement has reached new limits where a
person can be kept alive even when his body is not performing normal functions to stay alive. With the help
of support machines his death can be prolonged. In this case ,the patient’s is incapable of thought or
sensation. She is dead but alive only in her physical existence. She has no chance of improvement or
recovery. So she should be allowed to go with the passive euthanasia and should be absolved from her pain
and agony.

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 [ARGUMENTS ADVANCED

Withdrawal of life support of a patient in Permanent vegetative :

In the case of Common Cause (A Regd. Society) v. Union of India6, the Supreme Court rendered a
landmark judgment where it reiterated the Gian Kaur case to hold that Right to life includes Right to
live with human dignity and such a right would exist up until the person’s end of natural life. It also
includes a dignified procedure of death. It was also held that when the question is about an
incompetent patient who are not able to take informed decisions, “best interest principle” shall be
applied and decision shall be taken by the competent medical experts and be implemented after
providing a cooling period to enable the aggrieved person to approach the court of law. The Court also
introduced the advance medical directive, which is individual’s advance exercise of his autonomy on
the subject of extent of medical intervention that he wishes to allow upon his own body at a future
date, when he may not be in a position to specify his wishes. In consonance of this the Court held:
“The purpose and object of advance medical directive is to express the choice of a person
regarding medical treatment in an event when he looses capacity to take a decision. The right to
execute an advance medical directive is nothing but a step towards protection of aforesaid right
by an individual.” The declaration made by the patient in his diary serves the purpose of a medical
directive. Even if it does not comply with the procedural requirement. Therefore, it is the duty of this
Court to honour the individual’s wishes and grant him a Right to die with dignity.

“A decision has to be taken to discontinue life support either by the parents or the spouse or other
close relatives, or in the absence of any of them, such a decision can be taken even by a person or a
body of persons acting as a next friend. It can also be taken by the doctors attending the patient.
However, the decision should be taken bona fide in the best interest of the patient.”
In the present case considering the wishes of the patient while he was still capable of thought, the
financial burden on the parents, and irreversible nature of PVS. It is only justified that in the patient’s
best interest, his life is brought to an end.

[ARGUMENT ADVANCED]

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Whether Court is the competent authority to decide the question of whether a person should be
granted passive euthanasia?

Principle of parens patrie :

The Principle of parens patrie originated originally in British law in the 13th century. It
practically implied that the King was the father of the country and had a duty to look after the interest
of the people who were unable to look after themselves. In this era, the idea behind this principle is
that whenever the citizens need a person to act like a guardian and take decisions on their behalf, the
State is the best qualified to take on this role.

Charan Lal Sahu vs. Union of India and State of Kerala vs. N.M. Thomas
To recognise the principle of parens patriae which is the intrinsic power and authority of a
legislature to provide guard to the person and property of persons non sui juris, such as minor, insane,
and incompetent persons, to decide that the decision that is to be taken regarding whether a
person in vegetative state should be assisted with death or not shall be decided by the High Court
under Article 226 of the Constitution of India. In light of which t is submitted that the upholding this
principle of parens patrie, the Supreme Court under Article 32 of the Constitution decide whether it is
in the best interest of the patient, Mr. John Joseph, to continue living a life in vegetative state where he
is incapable of thought or sensitivity. In this case, the Court accepted the view taken in the
case of State of Kerala vs. N.M. Thomas, where it has been held that Court is also state
within the Article 12 of the Constitution. Holding this view, the Court reiterated: “In our opinion, in
the case of an incompetent person who is unable to take a decision whether to withdraw life support or
not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt,
the views of the near relatives, next friend and doctors must be given due weight.

However, from the above observation, Court shall considered the mood and affect, perception and speech
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and thought, orientation, memory and intellectual capacity and insight of the patient to take such a decision.
The patient in this case was able to make vocal sounds and appeared to have minimal language
comprehension or expression, she also showed signs of getting disturbed by presence of many people.

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PRAYER

Wherefore, in light of the facts states, issues raised, authorities cited and arguments advanced, the Hon’ble
Supreme Court of India be pleased to adjudge and declare:

1. Right to die with dignity is a fundamental right under Article 21

2. Direct the Respondents to administer passive euthanasia on the patient ARUNA RAMANCHADRAN
SHANBAUG.

AND/OR

Pass any such order/writ/direction as this Hon’ble Court deems fit or proper benefitting to the Petitioner,
for this Petitioner shall duty bound pray, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Counsel on behalf of the Respondent

Sd/

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