Biswaranjan Pattanayak Memorial Moot Court Competition. Winning Memorial.

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016
TEAM CODE
Before
THE HONOURABLE HIGH COURT, ODISHA
Writ Petition Case No. ***/2016

IN THE MATTER OF
[A Writ Petition, by the Petitioner i.e. Save Odisha Organization, under Article 226 of the
Constitution of India, against the scheme introduced by the State of Odisha.]
[A Writ Petition, by the Petitioner i.e. Sri Ram Kumar Rath, Article 226 of the Constitution
of India, against the violation of fundamental rights by the State Of Odisha]
In The Matter Of
Save Odisha Organization v. The State of Odisha.

In The Matter Of
Sri Ram Kumar Rath v. State of Odisha
MEMORANDUM on behalf of PETITIONERS

1
TABLE OF CONTENTS
Table of Contents ....................................................................................................................... 1

Index of Abbreviations .............................................................................................................. 3
Dictionaries ................................................................................................................................ 4
BOOKS, COMMENTARIES AND DIGESTS ......................................................................... 4
Table of Cases............................................................................................................................4
Statement of Jurisdiction............................................................................................................ 8
Statement of facts ....................................................................................................................... 9
Statement of Issues .................................................................................................................. 11
Summary of Arguments ........................................................................................................... 12

2
INDEX OF ABBREVIATIONS
A.C.
Appellate Cases
AIR
All India Reporters
All ER
All England Law Report
Anr.
Another
Bom DB
Bombay Division Bench
Bom
Bombay
CC
Company Cases
Ltd.
Limited
n.
Note
Ors.
Others
p.
Page
P.
Petition
Para
Paragraph
pvt
Private
P. Ltd
Private Limited
Rev
Review
SC
Supreme Court
SCC
Supreme Court Cases
v.
Versus

3
INDEX OF AUTHORITIES
STATUTES
Indian Constitution, 1950
Income Tax Act, 1961.
DICTIONARIES
1. Compact Oxford Reference Dictionary Ninth Edition.
2. Blacks Law Dictionary Ninth Edition, 2009.
BOOKS, COMMENTARIES AND DIGESTS
Dr. U.P.D. Kesari, Administrative Law, Central Law Publications, Twentieth Edition2014.
2. Kailash Rai, Taxation Laws, Allahabad Law Agency, Ninth Edition.
3. Prof. M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Fifth
Edition-2009.
4. V.N. Shukla, Constitution of India, Eastern Book Company, Eleventh Edition-2008
5. Dr. J. N. Pandey, The Constitutional Law of India, Central Law Agency, Forty- sixth
Edition-2009.
6. P. K. Majumdar, R. P. Kataria, Commentary on the Constitution Of India, Orient
Publishing Company, Tenth Edition- Volume 1, 2011.
7. Durga Das Basu, Case book on Indian Constitutional Law, Kamal Law House, Second
Edition-2007.
1.

4

TABLE OF CASES
1. Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377.. 14

2. Akhila Bharatiya Soshit Karamcharai Sangh Vs. Union of India 1981 1 SCC
246.4
3. Ashby v. White 21
4. Ashok Kumar v. State of W.B. Writ Petition (Crl.) 199 of 2003.5
5. Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802)
.....19,5,6
6. Blyth v. Birmingham Water Works Co. (1856) 11 Ex. 7...18
7. C.E.S.C. Limited vs. Subash Chandra Bose. Ram Biharilal vs. Shrivastava .8
8. Central Inland Water Transport Corporation v Brojo Nath Ganguly ..14
9. Chintaman Rao v. Slate of M.P., A.l.R. 1951 S.C. 118:(1950) S.C.R. 759....3
10. D. K. Basu v. Union of India 22
11. Dalip Kumar Jha and Ors. Vs. Respondent: State of Punjab and Ors. W.P. (MD) No.
3888 of 2007..17
12. Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962
S.C. 1210....3
13. Forum for Fact Finding Documentation and Advocacy, Raipur v. State of Chattisgar,
2006 Cri LJ 4372(Chhat)...6
14. Gourav Jain v. U.O.I (197)8 SCC 114: AIR 1997 SC 3021..........................................5
15. George Matthew v. Union of India (1997)10 SCC 537.........................................6
16. Janata Dal v. H.S. Chowdhari, (1992) 4 SCC 305....5
17. Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 2803
18. Khatri (II) v. State of Bihar (1981) 1 SCC 627...22
19. Khyebari Tea Co. v. State of Assam (1964) AIR 925, 1964 SCR(5) 975.2

5

20. Laxman Balakrishna Joshi v. Trimbak Babu Godbole (1969) 1 S.C.R.
206...18
21. Lingappa Pochanna Appelar v. State of Maharashtra (1985) 1 SCC 479.14
22. M.C. Mehta v. Union of India AIR 1987 SC 108722
23. Maharaj v. Attorney General of Trinidad and Tobago. 22
24. Maneka Gandhi v. Union of India. AIR 1978 SC 597. 22
25. Nilabati Behera v. State of Orissa, AIR 1983.21
26. Paramananda Katara v. Union of India1995(3) SCC 248.17
27. Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426 at
2429 para 9)...19
28.
People's Union for Democratic Rights v. U.O.I AIR 1982 SC 1473: (1982)3 SCC
235.5
29. Rabindra Nath Ghosal v. College Of Calcutta(2002) 7 SCALE 137.21

30. Railway Board v. Chandrima Das AIR 2000 SC 988..21
31. Ramji Singh @ Mujeeb Bhai v. State of Uttar Pradesh.16
32.
Rashid Ahmed v. Municipal Board, A.l.R. 1950 S.C. 163: (1950) S.C.R. 566.3
33. Rudul Shah v State of Bihar (AIR 1983 SC 1086)..18

34. Saraswati Industrial System Ltd. v. Union of India, AIR 1975 C 46..3
35. S. Sethu Raja v. The Chief Secretary, Government of Tamil Nadu and others..17
36. S.I. Syndicate v. Union of India, AIR 1975 SC 460.4
37. S.P. Gupta and others v. President of India and others, AIR 1982 SC 149.5
38. State of Haryana vs. Santra 2000 CTJ 481 (SC); 1 (2000) CPJ 53 (SC).......18
39. State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors 1986 AIR
847....14
40. State of Himachal Pradesh v. Parent of a Student, AIR 1985 SC 910..3
41. State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.19

6

42. State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610......3
43. State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.........................19
44. State of Rajasthan vs. Vidyavati(1996) 2 SCC 634; (1996) 4 CTJ 950 (SC)...18
45. Sukhnandan Thakur v. State of Bihar AIR 1957 Pat 617..14
46. T.C. Basappa v. Nagappa, AIR 1954 SC 440.....2
47. The
State
of
Bombay
v
P.
AIR
1959
Bom
182
20.19
48. Vincent Pani Kurlnagara Vs. Union of India.18
49. Veena Sethi v. State of Bihar AIR 1983 SC 339..2
50. White v. Jones [1995] 2 A.C. 207..18

7
STATEMENT OF JURISDICTION
THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE

HIGH COURT THE MEMORANDUM FOR THE PETITIONERS IN THE WRIT
PETITIONER NO. ***/2016 FILED BY SAVE ODISHA ORGANIZATION AND SHRI
RAM KUMAR RATH, UNDER ARTICLE 226 OF THE INDIAN CONSTITUTION, 1950.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS AND
ARGUMENTS IN THE PRESENT CASE.

8
STATEMENT OF FACTS
A Whatsapp video was circulated showing a person carrying his dead child on National
Highway No. 5 with a message regarding apathy of people of the State Government towards
its people. On account of hue and cry over the matter, the Odisha State Government directed
the collector, Cuttack to enquire into the matter and submit a report.
There were several newspaper articles flashing that the hospital authorities, having failed to
provide help after the death of the child, the father was compelled to carry the body on his
shoulders as he did not have enough money to pay for transport. There were also several
news articles highlighting violation of rights and disrespect to the departed sole besides
questioning the governance.
The news having spread across the globe, several NGOs and Charitable Organizations came
forward to help the poor man and also promised donations in his favour. The Collector
having enquired into the matter, later submitted that, the person on learning about the death
of his child, left the hospital without informing anyone.
The hospital being a Government Hospital, free facilities were available which he could have
availed by making proper application. The Collector ultimately put the blame on that person
and gave a clean chit to the hospital authorities.
The said person however, on being asked by the media, was not able to show any document
from the hospital which could prove that he had asked the hospital authorities for help before
leaving. The media and press suggested that the above press statement was coerced by top
officials and not voluntary as because, the viral video and the interviews published earlier,
showed statements contrary to the above.
The Chief Minister being targeted over the matter, finally, came out and declared that all the
monetary help that the person receives shall be tax free and the Government has decided to
introduce free transport to and from Government Hospitals.
An organization named Save Odisha, headed by a political leader belonging to one of the
Non-ruling parties, who also happens to be an advocate, approached the High Court of Orissa
challenging that providing free transport to and fro from Government Hospitals will be an
unnecessary burden on the Government as the Government already has existing schemes that
provide free ambulance, free medicine, food, etc.
On the other hand, one Sri Ram Kumar Rath, an advocate from the local bar filed a Public
Interest Litigation(PIL) claiming compensation for the said person on account of Violation of
his fundamental rights and disrespect towards citizens of the state alleging inaction by the
state besides praying for stringent actions against the erring officials. Sri Ram Kumar Rath

9

also challenged the decision of the state to exempt tax and introduce new scheme which was
neither necessary nor relevant to meet the present issue. The Honble High Court of Orissa
has directed for hearing of both the matters together.

10
STATEMENT OF ISSUES
The following questions are presented before the Honble High Court in the instant matter:
ISSUE 1:Whether the cases are maintainable as laid?
ISSUE 2:Whether tax exemption granted by the Government is opposed to interests of the public and
tax payers of the state?
ISSUE 3:Whether the new Scheme introduced by the Government necessary and Constitutional?
ISSUE 4:Whether there has been any violation of any Constitutional right?
ISSUE 5:Whether the petitioners are entitled for any relief from the present petitions

11
SUMMARY OF ARGUMENTS
I.
WHETHER THE CASES ARE MAINTAINABLE AS LAID?
It is humbly submitted before the High Court of Orissa that this petition is maintainable
under Art 226 of the Constitution wherein every High Court shall have power, throughout the
territorial limits in relation to which it exercises jurisdiction to issue any person or authority
including the appropriate cases, any Government, within those territories, directions, and
order of writs for the enforcement of fundamental rights conferred by Part III, and for any
other purpose. It is most humbly submitted that very evidently in this instant case the
fundamental rights of the victim has been infringed by the respondents.
II.
WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

OPPOSED TO INTERESTS OF THE PUBLIC AND TAX PAYERS OF THE
STATE?
It is most humbly submitted before the Honble High Court that the interests of the public and
tax payers of the state will be hampered by the tax free monetary help given to the aggrieved
father. Further, the State failed to keep in mind the additional burden on the general public
while declaring the scheme.
III.
WHETHER THE
NEW
SCHEME
INTRODUCED
GOVERNMENT IS NECESSARY AND CONSTITUTIONAL?
BY
THE
It is most humbly stated before the Honble High Court that the new Scheme
introduced by the Government is entirely unnecessary and nor is it in accordance to any
Constitutional mandate. Yet the Government chose to waste valuable time and resources in
contriving new schemes. There are plenty of schemes providing for facilities are already
present but it continues to elude the vast majority of the poor.

12
IV.
WHETHER THERE HAS

CONSTITUTIONAL RIGHT?
BEEN
ANY
VIOLATION
OF
ANY
It is most humbly submitted that there has been tremendous violation of the Constitutional
right of the deceased child in the present case. The Petitioner humbly pleads that the right
to life as enshrined in Article 21 of the Constitution of India includes the right to health
and medical treatment. The scope of Article 21 encompasses the right to dignity even after
death. Hence it is alleged that there has been an infringement of his fundamental right to
dignity after death under the given Article.
V.
WHETHER THE PETITIONERS ARE ENTITLED FOR ANY RELIEF

FROM THE PRESENT PETITIONS?
The Petitioner humbly submits that the aggrieved father is entitled to relief as there has
been a definite rupture of his fundamental rights under the Constitution of India. The
Petitioner further pleads that it is a vain thing to envision a privilege without a cure; need
of right and need of cure are equal.

13

ARGUMENT ADVANCED
1. WHETHER THE CASES ARE MAINTAINABLE AS LAID?
It is humbly submitted before the High Court of Orissa that this petition is maintainable
under Art 226 of the Constitution wherein every High Court shall have power, throughout the
territorial limits in relation to which it exercises jurisdiction to issue any person or authority
including the appropriate cases, any Government, within those territories, directions, order of
writs- (a) for the enforcement of fundamental rights conferred by Part III, and (b) for any
other purpose.
It is most humbly submitted that very evidently in this instant case the fundamental rights
of the victim has been infringed by the respondents. Article 226 is couched in comprehensive
phraseology and it confers a wide power on the High Court to remedy injustice wherever it is
found.1
In the instant case the respondents have failed to perform their duties and as a result of
their negligence/lack of care a great harm has been caused to the victim. The gut wrenching
image of a father carrying his dead child on his shoulders has shaken the society and has
brought the deprivation and hopelessness of poor people into focus.
The rule of law requires to be played for the poor and ignorant who constitute a large bulk
of humanity in this country and the court must uphold the basic human rights of weaker
sections of the society.2
When an aggrieved party or any public spirited individual or social action group, discovers
that the executive is remiss in discharging its obligation under the Constitution, because of
which the poor and the under privileged are subjected to exploitation and injustice, the Courts
must compel the execution to carry out its constitutional and legal obligations and ensure that
the deprived and vulnerable sections of the community are no longer subjected to exploitation
or injustice and they are able to realise their social and economic rights.3
T.C. Basappa v. Nagappa, AIR 1954 SC 440

Veena Sethi v. State of Bihar; Khyebari Tea Co. v. State of Assam
3
State of Himachal Pradesh v. Parent of a Student, AIR 1985 SC 910.
2

14

1.2 WRIT OF MANDAMUS.
It is most humbly pleaded that in the instant case there has been breaches of
mandatory duty by the respondents. The way the collector waived off the hospital authorities
by putting all the blame on the victim shows us the real picture of the government. It is not
possible that a man took his dead child and none of the hospital authorities were able to catch
a glimpse of it.
They were trying to turn a blind eye to this, only because of the hue and cry that was
created by the media that they thought of this matter to be important enough to take it into
consideration. Thus a writ of Mandamus can be granted in such cases where there is a
statutory duty imposed upon the officer concerned, and there is a failure on the part of that
officer to discharge the statutory obligation.4
The applicant must have a legal right to the performance of a legal duty5. The duty to
be enforced by a writ mandamus could arise by a provision of the Constitution6or of a statute7
or of the common law.8 The legal duty must be of a public nature.9 All thee ingredient are
present in the instant case.
In S.I. Syndicate v. Union of India,10 the Supreme Court has adopted the following statement
of law in this regard. :
"As a general rule the orders would not be granted unless the party complained of has
known what it was he was required to do, so that he had the means of considering
whether or not he should comply, and it must be shown by evidence that there was a
distinct demand of that which the party seeking the mandamus desires to enforce, and
that the demand was met by a refusal."
Thus, a party seeking mandamus must show that the demand justice from the authority
concerned by performing his duty and that the demand was refused. In this case the
authorities ceased to work properly and justice was not done with the victim and his child.
1.2. LOCUS STANDI.
It is most humbly stated that the traditional rule of locus standi that a petition under
Art 32 or Art 226 can only be filed by a person whose fundamental right is infringed has now
4
A.T. Markose, Judicial Control of Administrative Action in India, p. 364

Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210
6
Chintaman Rao v. Slate of M.P., A.l.R. 1951 S.C. 118:(1950) S.C.R. 759; Rashid Ahmed v. Municipal Board,
A.l.R. 1950 S.C. 163: (1950) S.C.R. 566
7
State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610.
8
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280
9
Saraswati Industrial System Ltd. V Union of India, AIR 1975 C 46; Halsbury's Laws of England, 3 rd Edn., Vol.
13. p. 106
10
AIR 1975 SC 460
5

15

been considerably relaxed by the Supreme Court in its recent rulings. The Court now permits
public interest litigations or social interest litigations at the instance of public spirited
citizens for the enforcement of Constitutional and other legal rights of any person or group
of persons who because of their poverty or socially or economically disadvantaged position
are unable to approach the court for relief.
It is most humbly contended that in the Judges Transfer Case,11 and in Janata Dal v.
H.S. Chowdhari,12the Supreme Court has re-examined the scope and object of the Public
Interest Litigation(PIL).
Where a legal wrong or a legal injury is caused to person or to a determinate class of persons
by reason of violation of any constitutional or legal right and such person or class by reason
of poverty etc. is unable to approach the court for relief, any member of the public can
maintain an application for an appropriate direction, order or writ in the High Court under
Art.226.13
In the present case the victim is a poverty stricken person who cannot approach the
court and even is not aware about his rights and the path to follow to achieve justice which
has been denied to him.14 PIL contemplates legal proceeding for vindication or enforcement
of fundamental rights of a group of persons or community which are not able to enforce their
fundamental rights on account of their incapacity, poverty or ignorance of law.15
It is most humbly contended that over the last three decades or so, the device of
Public Interest Litigation (PIL) has come to be recognized as a characteristic feature of the
higher judiciary in India. They have in due course emerged as the site where this device has
been repeatedly used to protect the interests of disadvantaged groups.16
Furthermore, it is contended that Public Interest Litigation is a challenge and an
opportunity to the Government and its officers to make basic human rights meaningful to the
deprived and vulnerable sections of the community and to ensure them social and economic
justice.17
11
S.P. Gupta and others v. President of India and others, AIR 1982 SC 149
(1992) 4 SCC 305
13
Ashok Kumar v. State of W.B. (Supra); People's Union for Democratic Rights v. U.O.I AIR 1982 SC 1473:
(1982)3 SCC 235
14
Bandhua Mukti Morcha v U.O.I (1984)3 SCC 161; AIR 1984 SC 802
15
George Matthew v. Union of India (1997)10 SCC 537
16
Forum for Fact Finding Documentation and Advocacy, Raipur v. State of Chattisgar, 2006 Cri LJ
4372(Chhat)
17
Bandhua Mukti Morcha v. U.O.I (1984)3 SCC 161 : AIR 1984 SC 802 ; Gourav Jain v. U.O.I (197)8 SCC
114: AIR 1997 SC 3021
12

16
2. WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

OPPOSED TO INTERESTS OF THE PUBLIC AND TAX PAYERS OF THE
STATE?
It is most humbly submitted before the Honble High Court that the interests of the
public and tax payers of the state will be hampered by the tax free monetary help given to the
aggrieved father. Further, the State failed to keep in mind the additional burden on the
general public while declaring the scheme.
Furthermore that in economics, the excess burden of taxation, also known as the dead
weight cost or dead weight loss of taxation, is one of the economic losses that society suffers
as the result of taxes or subsidies.
Moreover, donation can be included as an income because Sec 80 G of the Income
Tax Act states that the contributions made to certain relief funds and charitable institutions
can be claimed as a deduction under Section 80G of the Income Tax Act. All donations are
not eligible for deduction under section 80G.
The State pleads that only donations made to prescribed funds qualify as a deduction.
So impliedly it can be termed as an income, therefore in the present case a certain deduction
can be made while giving it but it cannot be completely exempted from tax because the
public at large will be affected by it.
Furthermore, the monetary help that the government is providing the main intention
behind is to prevent the public from coming up with allegations and to stop the media to
create a havoc out of this situation, they are not guilty of having committed this particular
activity and on top of that they are putting a huge burden on the public by making it tax free.
It is most humbly contended that in the case of C.W.T. Vs. Arvind Narottam18 judge
Sabyasachi Mukherji made the following significant observations:
1. Where the language of deed of settlement is plain and admits of no ambiguity
there is no scope for considerations of tax avoidance.
2. One would wish as noted by Chinnappa Reddy in Mc Dowell's case that one could
get the enthusiasm of Justice Holmes that taxes are the price of civilization and one
would like to pay that price to buy civilization. But the question which many ordinary
tax payers very often in a country of shortages (with ostentatious consumption and
18
173 ITR 479 (SC)

17

deprivation for the large masses) ask is does he with taxes buy civilization or does he
facilitate the waste and ostentation of the few. Unless waste and ostentation in
government spending are avoided or eschewed no amount of moral sermons would
change people's attitude to tax avoidance.
Moreover, it is most humbly pleaded that it is a one of case and a very rare case, to
exempt tax altogether for this matter is definitely going to be burdensome for the public and
the tax payers. These are the few reasons why we have so many tax evaders in our country.
The money will be wasted and the public and the tax payers are going to bear the brunt of it.
The center has the power to make laws on taxation, whereas on the other hand we
have got no proof whether the state has taken any permission from the constitutional body
CBDT or not, before making this donation tax free. The state has no power to take such a
huge step.

18
3. WHETHER THE NEW SCHEME INTRODUCED BY THE GOVERNMENT IS

NECESSARY AND CONSTITUTIONAL?
It is most humbly stated before the Honble High Court that the new Scheme
introduced by the Government is entirely unnecessary and nor is it in accordance to any
Constitutional mandate.
It is humbly stated that the father of the child had pleaded with the hospital authorities
as he was a poor person and could not afford a vehicle to carry his childs body. Despite
repeated requests, they did not offer any help. Regardless of all his efforts to get help
regarding transport, the desperate father could not get any help from the hospital authorities.
Thus, he lifted his childs body and started walking on the National Highway No. 5.
After such an outrage, the Odisha government launched the scheme (Mahaprayan) to
transport bodies, came too late for the father of the deceased who had to carry his childs
body on his shoulder as he had no money for a hearse van. Hence the publics demand for
administrations intervention for shifting the body was not wrong.
The Petitioner humbly states that administration woke up too late when they ordered a
probe into the incident. There was no actual dearth of private vehicles for carrying bodies. A
sympathetic administration should have come forward and helped the poor tribal villager.
3.1. NUMBER OF PRE-EXISTING SCHEMES.
It has been further claimed that there were Rogi Kalyan Samitis (Patient Welfare
Committees) across the State were having ruling political party cadres as members as a result
of which the sympathetic help expected from these committees was not forthcoming for poor
people like the father of the deceased. Some NGOs like Badhte Kadam provide cheaper
ambulance services, but owing to limited number of vehicles, the facility eludes the vast
majority of the poor.
It is most humbly stated that, from the time a mother conceives to performing of last
rites, the state has schemes for every occasion. But those schemes were envisaged to garner
popular votes. The objectives of these schemes get defeated due to poor implementation.19
This latest scheme was launched keeping in view the Harischandra Yojana, under which
19
Statement made by Biswapriya Kanungo, human rights activist, who is taking up the issue of dignity of dead
bodies with the State Human Rights Commission. http://m.thehindu.com/news/national/other-states/afteroutrage-odisha-government-launches-scheme-to-transport-bodies/article9032633.ece Deccan Herald logo,
Thursday 3 November 2016, News Updated at 05:11 AM IST

19

poor people get financial assistance for cremation and is ridiculously similar in concept to the
newly introduced scheme.
3.2. HIDDEN AGENDA BEHIND LAUNCHING OF THE SCHEME.
The Petitioners vehemently criticize this Scheme because the Odisha Government
only talks but never acts and like other schemes, this new scheme (Mahaprayan Scheme) will
also not reach the needy people.20
Under fire from all quarters the Odisha Government has been forced to come up with
a remedy in the form of the Scheme (Mahaprayan Scheme) as damage control so that they do
not hurt their chances in the poll. This Scheme offering free hearse service from government
hospitals, awkwardly a day after the shocking video of the man carrying home the body of his
son from hospital.
The Petitioner alleging that a dead body also has a right to dignity states that, in this
case the State Government has failed to protect it. This case is not a solitary instance, there
are many such incidents when the right to life and dignity of poor people are compromised in
the State. The Government should be called upon to accept its failure and take sincere steps
to implement schemes meant for poor people.
Yet instead it chooses to waste valuable time and resources in contriving new
schemes. Unfortunately in the entire tribal area of Odisha the health system has completely
collapsed. This kind of behavior of health administration is really shocking. The apathy by
hospital authorities in Odisha have come in the news constantly since last month.
3.2. CONSTITUTIONAL MANDATE.
It is humbly submitted that Article 38(2) in the Constitution of India 1949 states the
following;
The State shall, in particular, strive to minimize the inequalities in income, and
endeavor to eliminate inequalities in status, facilities and opportunities, not only
amongst individuals but also amongst groups of people residing in different areas or
engaged in different vocations.
Hence it can be positively stated that affirmative action is the form of some remedial
measure, in public interest, in the background of the constitutional aspirations as enshrined in
20
http://www.newindianexpress.com/states/odisha/2016/aug/25/Government-launches-Mahaprayan-schemedraws-criticism-1512942--1.html

20

Article 38 is necessary.21 However this cannot be taken to mean that the State can mis-utilize
its resources in the name of development facilities.
The Petitioner humbly pleads that Article 38 embodies the jurisprudential doctrine of
distributive justice. The Constitution permits and even directs the State to administer
distributive justice. The concept connotes inter alia, the removal of economic inequalities
rectifying the injustice resulting from the dealing and transaction between unequals in
society.22 However this provision cannot be used as a weapon for the ruling party to armour
themselves for the polls.
Further, this clause has often been relied upon to sustain and demand social welfare
measures and to remind the State about the kind of society the Constitution had expected to
create.23 Only inaugurating new schemes will do no good unless they are necessarily
implemented. No efforts can be noticed concerning the proper implementation of the
schemes. Moreover Article 41 deals with undeserved want.24 Yet again the Government
seems to interpret these provisions wrongfully only to set up a number of unnecessarily
expensive schemes.
Emphasizing the importance of Directive Principles of State Policy in Akhila
Bharatiya Soshit Karamcharai Sangh Vs. Union of India25 The directive principles cannot,
in the very nature of things be enforced in a court of law, but it does not mean that directive
principles are less important than fundamental rights or that they are not binding on various
organs of the state.
Furthermore, Article 14 of the Constitution demands that there should be equality for
all persons. However there has been rampant violation of this mandate because the influential
still seem to make most of the schemes while the genuinely poor are deprived of these
facilities despite of making demands for them.
3.3. INSTANCES OF THE FAILURE OF THE SCHEMES.
The Petitioner begs to draw the attention of the Honble Court towards the pitiable
condition with respect to hearse transport in Odisha. One such shocking incident was in
Balasore district, where the laborers broke the legs of a dead body, assembled it into a heap
21
State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors on 11 February, 1986 Equivalent citations:
1986 AIR 847, 1986 SCR (1) 251
22
Central Inland Water Transport Corporation v Brojo Nath Ganguly (1986) 3 CC 156. See also Lingappa
Pochanna Appelar v. State of Maharashtra (1985) 1 SCC 479.
23
See e.g. Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377: AIR 1997 SC 645.
24
Sukhnandan Thakur v. State of Bihar AIR 1957 Pat 617.
25
1981 1 SCC 246..

21

and then carried it strung across a bamboo pole since the authorities failed to get a mortuary
van to carry the body to the hospital for postmortem.26
In another such instance, the son of a tribal woman had to carry her body in a trolleyrickshaw to their village Ankula, located four kilometers away from Jajpur after she died at
Jajpur District Hospital as no ambulance was available at the Jajpur District Hospital to take
the women's body due to Vishwakarma Puja and some vehicle available near the hospital
demanded an exorbitant amount of money from the family to carry the body.
Furthermore one lady from Ghusapalli in Malkangiri died while being taken by her
parents in the ambulance from Mithali hospital from where she was referred to Malkangiri
district hospital following deterioration in her health condition.27 Hence there seems to be a
trend apparent from the deterioration in the services provided by the Government.
Only when the Chief Minister was targeted over the matter, the Government came out
and declared that the monetary help that the person would receive shall be tax free and that
the Government had decided to introduce free transport to and from Government Hospitals.
This action taken in the eleventh hour is evident enough to show that the true
intention of the Government was to preserve its name before the public in the light of press
statements, interviews and the viral video, rather than community welfare. Hence the
Petitioner strongly urges that the exiting schemes for free ambulance, free medicine, food etc
should be availed of and exhausted before launching new burdensome schemes.
26
http://m.hindustantimes.com/india-news/day-after-man-carries-wife-s-body-on-shoulder-odisha-govtlaunches-mahaprayan-scheme/story-0ajL8dq4fN3AjuLKREWIDK.html
27
http://www.dnaindia.com/india/report-no-dignity-in-death-dead-tribal-woman-s-body-transported-on-trolleyrickshaw-after-ambulance-leaves-midway-2256934

22
4. WHETHER THERE HAS BEEN ANY VIOLATION OF ANY

CONSTITUTIONAL RIGHT?
It is most humbly submitted that there has been tremendous violation of the
Constitutional right of the deceased child in the present case. The Petitioner humbly pleads
that the right to life as enshrined in Article 21 of the Constitution of India includes the right to
health and medical treatment.28 The scope of Article 21 encompasses the right to dignity even
after death. Hence it is alleged that there has been an infringement of this fundamental right
to dignity after death under the given Article.
4.1. RIGHTS OF DEAD PERSONS.
In this instance it is most humbly submitted that the right of the person in question is a
dead child. A person has not been defined under Article 21. However Section 3 (42) of the
General Clauses Act defines a person to include any company or association or body of
individuals, whether incorporated or not. Such a person would be a legal entity that is
recognized by law as subject of rights and duties.29
The Indian Penal Code defines a person in Section 11 to include any company or
association or body of persons whether incorporated or not. A person defined in Tomlins'
Law Dictionary as man or woman; also the state or condition, whereby one man differs from
another. A person in law may be either natural or artificial.
However the Petitioner wishes to rely on the following case. The High Court of
Allahabad has enunciated the legal rights of dead persons in the case of Ramji Singh @
Mujeeb Bhai v. State of Uttar Pradesh that;
The word person may not be construed narrowly so as to exclude the dead body of a
human being, who was the person, when alive, which is not claimed and which is
required to be cremated or buried with dignity in accordance with the religious
beliefs of the person, if such beliefs can be found by establishing his identity.
The State is obliged in law both under its powers as a welfare state, and to protect the
rights of such person in its extended meaning under Art.21 of the Constitution of India
for disposal of a dead body for a decent and dignified cremation/ burial in
accordance with the religion beliefs the man kept or professed.
28
29
Sharma MK, right to Health and Medical Care as a Fundamental Right AIR 2005, p. 255.
http://legalperspectives.blogspot.in/2010/01/do-dead-people-have-rights.html

23

We thus find that the word and expression 'person' in Art.21, would include a dead
person in a limited sense and that his rights to his life which includes his right to live
with human dignity, to have an extended meaning to treat his dead body with respect,
which he would have deserved, had he been alive subject to his tradition, culture and
the religion, which he professed.
Furthermore the Petitioner relies on the judgment by the Honble Supreme Court of India in
the case of Paramananda Katara v. Union of India30 has most graciously stated similar
view. The relevant portion has been herein below quotedWe agree with the Petitioner that right to dignity and fair treatment under Article 21
of the Constitution of India is not only available to a living man but also to his body
after death.
The petitioner begs to state that the Government is obliged for giving appropriate
directions for the transport, preservation and disposal of the dead bodies and for that purpose,
to give an extended meaning of the expression, 'person' in Art. 21 to include dead bodies of
the persons, who were human beings, in a restricted sense.31
The Honble Madras High Court in S. Sethu Raja v. The Chief Secretary,
Government of Tamil Nadu and others, held that right of human dignity is not restricted to
human being but was available after death.32
The Petitioner proceeds with the contention that the dead, although unable to make
real-time choices, are capable of being legal right-holders. Furthermore it is true that the
deceaseds interest survives even after death, and must receive legal protection. Hence the
death of the child consequently does not end all his legal rights. Recognition of such legal
rights gives the dead significant moral standing within the countries legal system, as the
Petitioner is driven by a desire to treat the dead with dignity.
Keeping this in mind the Petitioner, most humbly states that such rights are valued
and should be jealously guarded. This principle is true whether one is living or dead. For
example, in this case, the law appears to protect some fundamental rights after death just as it
would if the person were living. It is not surprising that these rights happen to be
constitutional rights.
The Petitioners contention should not lose strength on the ground that this right take a
venue that has not been explored before or is not in consonance with the societys morphing
views.
30
1995(3) SCC 248 : 1995 SCC (Cri) 464: 1997 (35) ACrC 560: 1995 (2) ECrC 165: 1995 Cri L. R. 367. Para4.
Dalip Kumar Jha and Ors. vs. State of Punjab and Ors. CWP No. 7345 of 2014.
32
W.P. (MD) No. 3888 of 2007.
31

24

4.2. LIABILITY OF HEALTH CARE PROVIDERS.
The Petitioner begs to draw the attention of the Honble Court to the matter of the
Health care provider liabilities. Lack of care is giving little attention to or to leave undone or
unattended to, especially through carelessness. When hospital authorities fail to provide
adequate facilities to transport a body correctly, it could also be considered neglect because
of the consequences.33
Furthermore, the courts are empowered to grant compensatory relief if the state fails
to preserve the life or liberty of the citizen.34 Award of compensation for the breach of Article
21 of the Constitution is not only constitutional power but also to assure the citizens that they
live under a legal system wherein their rights and interests are protected and preserved.35
However in the instant case no such facilities were extended for carrying the body of
the deceased child. The father was compelled to carry the dead body on his shoulders. It is
further contended that the maintenance and improvement of public health facilities have to
rank high as these are indispensable to the very existence of the community and on the
betterment of these depends the building of the society which the constitution makers
envisaged.36
A legally recognized obligation of health service providers are to the patient, is the
duty to take reasonable care37 which also manifests after death. Attending to public health
therefore, is of high priority38. The State is vicariously liable for the acts of its servants or
agents.39 The omission to something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do40 is a question of fact.
In the present case the most reasonable gesture would be to help out the needy father
of the deceased. This duty arose by assumption of responsibility41 when they accepted the
33
"Washington V. John T. Rhines Co." National Association of Personal Injury Lawyers. 2005. 10 Mar. 2008.
It was in Rudul Shah V State of Bihar (AIR 1983 SC 1086) in which the Supreme Court for the first
time set up an important landmark in Indian Human Rights Jurisprudence by articulating compensatory
relief for infraction of Article 21. Since then the court started awarding monetary compensation as and
when the conscience of the court was shocked.
35
AIR 1998 Journal 154
36
Vincent Pani Kurlnagara Vs. Union of India1987 AIR 1990; 1987 CR (2) 468
37
Andrew Fulton Philip, Medical Negligence Law Seeking a Balance, 1st edition, 1997, Dartmonth
Publishing Compnay, Vermount (USA) p. 14.
38
C.E.S.C. Limited vs. Subash Chandra Bose. Ram Biharilal vs. Shrivastava AIR 1985 MP 150
39
State of Rajasthan Vs. Vidyavati(1996) 2 SCC 634; (1996) 4 CTJ 950 (SC) State of Haryana vs. Santra 2000
CTJ 481 (SC); 1 (2000) CPJ 53 (SC).
40
Blyth v. Birmingham Water Works Co. (1856) 11 Ex. 781 cited in W.H.V. Rogers, M.A., Winfield and
Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p. 171 Laxman Balakrishna Joshi v.
Trimbak Babu Godbole (1969) 1 S.C.R. 206.
41
White v. Jones [1995] 2 A.C. 207
34

25

deceased as their patient in the hospital. They owed a duty of care to the deceased after his
death but they are in breach of it.
India is a party to the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights. The Supreme Court held
that Article 21 of the Constitution of India in relation to human rights has to be interpreted in
conformity with international law.
These covenants find statutory acceptance in the Statement of Objects and Reasons of
The Protection of Human Rights Act, 1993. In addition, human rights commissions are
empowered to study treaties and other international instruments on human rights and make
recommendations for their effective implementation42. In the recent past, many complaints of
alleged medical negligence and deficient service by private and government hospitals and
medical professionals have been filed with the national or state Human Rights Commissions.
Article 21 of the Constitution guarantees protection of life and personal liberty to
every citizen. The right to live with human dignity, enshrined in Article 21, derives from the
Directive Principles of State Policy and therefore includes protection of health43. Further, it
has also been held that the right to health facilities are integral to the right to life and the
government has a constitutional obligation to provide health facilities.44
The failure of a government hospital to provide a patient timely medical treatment
results in violation of the patients right to life45. Their failure to provide timely transport
facilities for the hearse is also a matter of great importance. Similarly, the states obligation to
maintain health services is also a must.46
4.3. TRIAL BY MEDIA.
The Petitioner claims that media is regarded as one of the pillars of democracy and
can be commended for starting a trend where the media plays an active role in bringing the
accused to book. Freedom of media is the freedom of people as they should be informed of
public matters.47
In the present case there was a Whatsapp video and news paper articles which brought
the public up to date regarding the plight of the father who had to carry the dead body of his
child on his shoulders because help was not granted to him.
It is thus needless to emphasise that a free and a healthy press is indispensable to the
functioning of democracy. To achieve this objective people need a clear and truthful account
42
Chapter III, Section 12 (f) of The Protection of Human Rights Act, 1993.
Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802).
44
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.
45
Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426 at 2429 para 9).
46
State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.
47
Kapil Sibal, The Hindustan Times, New Delhi, May 4 2001.
43

26

of events, so that they may form their own opinion and offer their own comments and
viewpoints on such matters and issues and select their future course of action.
The right to freedom of speech and expression in contained in Article 19 of the
onstitution. However the freedom is not absolute as it is bound by the sub clause (2) of the
same article.48
48
The State of Bombay v P. AIR 1959 Bom 182

27
5. WHETHER THE PETITIONER ARE ENTITLED TO ANY RELIEF FROM

THE PRESENT PETITION?
The Petitioner humbly submits that the aggrieved father is entitled to relief as there
has been a definite rupture of his fundamental rights under the Constitution of India. The
Petitioner further pleads that it is a vain thing to envision a privilege without a cure; need of
right and need of cure are equal.49 Such a claim is made keeping in mind the doctrine of ubi
jus ibi remedium.
Moreover unless there is effective machinery for the enforcement of the rights, the
declaration of the Fundamental rights is meaningless. It is a remedy which makes the right
real. If there is no remedy there is no right at all.50 In this case the wrongs against the poor
father ought not to remain unredressed. Reparations in light of misfortune, should be aptly
made by the State Government in the form of compensation.
Furthermore, the power of the court to grant such remedial relief may include the
power to award compensation in appropriate cases. The Court has clarified that the
appropriate cases in Railway Board v. Chandrima Das,51 are those cases where the
infringement of fundamental right is gross and patent that is incontrovertible and ex facie
glaring and appears unjust or unduly harsh or oppressive on account of poverty or disability
or socially or economically disadvantaged position.
Consequently when the Court moulds the relief in proceedings under Article 226 of
the Constitution seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalizing the wrongdoer and fixing
the liability for the public wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizens.52
In the case of Nilabati Behera v. State of Orissa, Justice Verma has stated;
If the guarantee that deprivation of life and personal liberty cannot be made except
in accordance with law is to be real, the enforcement of the right in case of every
contravention must also be possible in the Constitutional scheme, mode of redress
being that which is appropriate in the facts of each case. This remedy in public law
49
Ashby v. White 92 ER 126, Vol. 92.

Constitutional Assembly Debate Vol VII at 953
51
AIR 2000 SC 988
52
Rabindra Nath Ghosal v. College Of Calcutta(2002) 7 SCALE 137.
50

28

has to be more readily available when invoked by the have-nots, who are not
possessed of the wherewithal for enforcement of their rights in private law.53
It is further pleaded that the Honble Court shape the help towards the aggrieved
father by allowing compensation under Article 226 of the Constitution as it allows the
implementation or assurance of his crucial rights. The Petitioner contends that compensation
in the way of exemplary damages' should be given for the breach of obligation by the State
in light the current misery of the father. The guilty party should recompense for the harm
caused due to the inaction in the execution of the obligations of the State and its servants. The
lack of facilities for carrying the body of the child after death was obnoxious.
There should be no straight jacket formula, or rigid rule for determining whether
compensation should be granted or not. The Petitioner request that modern la prepared to
forge new tools and devise new remedies for the purpose of vindicating the most precious of
the precious fundamental right to life and personal liberty.54
It is humbly pleaded that the attempt of the court should be to expand the reach and
ambit of the Fundamental Rights rather than to attenuated their meaning and content by a
process of judicial construction as has been prominently stated in the case of Maneka Gandhi
v. Union of India.55
Such a flagrant infringement of his fundamental rights cannot be corrected in any way
other than through payment of compensation. Pecuniary compensation is an appropriate,
effective and sometimes, the only suitable remedy for redressal of grievances. 56 Only the
revered Courts may satisfy the social aspiration of the citizens, to apply the grant of
compensation as damages in public law proceedings.57
The doctrine of sovereign immunity is no defense in cases of fundamental right
violation. Thus, on this principle, the view was unanimous, that enforcement of the
constitutional right and grant of redress embraces award of compensation as part of the legal
consequences of its contravention. Hence the Petitioner pleads that the Court kindly take into
consideration the atrocious circumstance of this peculiar case as well as the precedent of the
Honble Supreme Court, while determining the relief.
In Maharaj v. Attorney General of Trinidad and Tobago58 permitted an order for monetary
compensation, by way of redress for contravention of the basic human rights and fundamental
freedoms.
53
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960. Para 19 of the decision.
Bhagwati, J. observed in Khatri (II) v. State of Bihar (1981) 1 SCC 627
55
AIR 1978 SC 597.
56
D. K. Basu v. State of West Bengal 1997 1 SCC 416
57
M.C. Mehta v. Union of India AIR 1987 SC 1087.
58
(1978) 2 All ER 670
54

29
PRAYER FOR RELIEF
Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Honble High Court, to adjudge and
declare that:
1. The scheme introducing free transport to and fro from Government Hospital be
declared invalid.
2. That stringent action be taken against the erring official of the State Government for
their inaction.
3. The aggrieved father be granted compensation for the violation of his Fundamental
Right and of his child.
The court may also be pleased to pass any other order, which this Honble Court may deem
fit in light of justice, equity and good conscience.
All of which is most humbly and respectfully submitted.
s/d Moot Counsel For Petitioners

30

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BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

THE HONOURABLE HIGH COURT, ODISHA

Writ Petition Case No. ***/2016

Save Odisha Organization v. The State of Odisha.

Sri Ram Kumar Rath v. State of Odisha

MEMORANDUM on behalf of PETITIONERS

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

Table of Contents ....................................................................................................................... 1

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

All India Reporters

All England Law Report

Bombay Division Bench

Supreme Court Cases

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

BOOKS, COMMENTARIES AND DIGESTS

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

1. Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377.. 14

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

29. Rabindra Nath Ghosal v. College Of Calcutta(2002) 7 SCALE 137.21

33. Rudul Shah v State of Bihar (AIR 1983 SC 1086)..18

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HONBLE

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

WHETHER THE CASES ARE MAINTAINABLE AS LAID?

WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

WHETHER THERE HAS

WHETHER THE PETITIONERS ARE ENTITLED FOR ANY RELIEF

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

1. WHETHER THE CASES ARE MAINTAINABLE AS LAID?

T.C. Basappa v. Nagappa, AIR 1954 SC 440

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

A.T. Markose, Judicial Control of Administrative Action in India, p. 364

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

2. WHETHER TAX EXEMPTION GRANTED BY THE GOVERNMENT IS

173 ITR 479 (SC)

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016

3. WHETHER THE NEW SCHEME INTRODUCED BY THE GOVERNMENT IS

MEMORANDUM on behalf of PETITIONERS

BISWARANJAN PATTANAYAK MEMORIAL MOOT COURT COMPETITION-2016