Memo Petitioner

Asmita College of Law 1st Intra College Moot Court (2020-21)
TEAM CODE:
IN THE HON’BLE HIGH COURT OF JUDICATURE AT SAURASHTRA

SITTING AT: BOMBAI
PUBLIC INTEREST LITIGATION

(CIVIL) WRIT PETITION
ORIGINAL CIVIL JURISDICTION
PIL. No.______ Of 2020
UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIVA
LOK SWASTHYA ABHIYAAN ......….PETITIONER
V/S.
1.STATE OF SAURASHTRA
2.SANJAY PRIVATE HOSPITAL ………... RESPONDENTS
UPON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE AND OTHER

PUISNE JUDGES OF THE HIGH COURT OF BOMBAI.
THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED
Memorial on Behalf of Petitioner

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TABLE OF CONTENTS
Sr. No PARTICULARS PAGE NO.
1 LIST OF ABBREVIATIONS 3
2 INDEX OF AUTHORITIES 4-6
3 STATEMENT OF JURISDICTION 7-8
4 STATEMENT OF FACTS 9-11
5 TIMELINE 12
6 STATEMENT OF ISSUES 13
7 SUMMARY OF ARGUMENTS 14-15
8 ARGUMENTS ADVANCED 16-25
9 PRAYER 26-27

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IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

SITTING AT: BOMBAI
PIL. No.______ Of 2020
FOR ISSUANCE OF A WRIT IN THE NATURE OF WRIT OF MANDAMUS

V/S.
STATE OF SAURASHTRA & ORS ………... RESPONDENTS
LIST OF ABBREVIATIONS
• v. - Versus
• AIR - All India Reporter
• Ch - Chapter
• SCC - Supreme Court Cases
• www - World Wide Web
• Pg. - Page
• Co. - Company
• & - And
• Pvt. - Private
• Hon’ble - Honorable
• Anr - Another
• Ors - Others
• UOI - Union of India

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
INDEX OF AUTHORITIES
STATUTES REFERRED
➢ Constitution of India,1949
➢ Clinical Establishment and Regulations Act, 2012
➢ Clinical Management Protocol- Covid-19
➢ Disaster Management Act, 2005
➢ Charter of Patient Rights,2018.
➢ Indian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations 2002.
➢ the Consumer Protection Act 1986.
➢ the Drugs and Cosmetic Act 1940.
➢ The Clinical Establishment Act 2010.
➢ the Epidemic Diseases Act,1897.
➢ Indian Penal Code, 1860.
BOOKS REFERRED
➢ Indian Constitutional law by Durga Das Basu, 4th Edition

➢ Indian Constitutional Law by M.P. Jain, 8th Edition

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➢ Hospitals & The Law

➢ S. P. Agarwal, Pleadings ( Lexis Nexis Butterworth);
➢ Justice P. S Narayana, Law Of Appeals, (6th ed., Asia Law House, Hyderabad);
➢ D.D. Basu, Commentary on the Constitution of Indiva, Y.V. Chandrachud &
S.S. Subbramani & V.R. Manohar & B.P. Banerjee eds., Vol. 3, 8th ed. 2012
OTHER REFERENCES
➢ https://lawstreet.co/judiciary/calcutta-high-court-covid19-article21
➢ https://www.barandbench.com/news/litigation/plea-in-calcutta-hc-to-hand-
over-dead-bodies-of-covid-19-patients-to-family
➢ https://scroll.in/article/964534/private-hospitals-in-india-are-overcharging-for-
safety-gear-in-the-absence-of-government-regulation
➢ https://www.latestlaws.com/articles/expanding-ever-evolving-article-21-of-
the-constitution-of-india-right-to-life-personal-liberty
➢ https://www.latestlaws.com/articles/overcharging-by-hospitals-from-covid-19-
patients-challenges-and-remedies-in-law/
➢ https://economictimes.indiatimes.com/news/politics-and-nation/virus-right-to-
decent-burial-facet-of-right-to-life-says-
hc/articleshow/75900298.cms?from=md
CASES CITED
➢ Maneka Gandhi v. Union of India: AIR 1978 SC 59

➢ Pt. Parmanand Katara vs. union of India (1995 3 SCC 248)
➢ Vineet Ruia v. Principal Secretary, Ministry of Health & Family Welfare, Govt
of West Bengal & Ors (www.barandbench.com)
➢ Escort Heart Institute & research centre vs Adeer Ur Rehman (Cs Dj: 10433/16)
➢ Devesh Singh Chauhan v. State & Ors (2017 SCC OnLine Del 8130)
➢ Trevor Nerves Britto v. State of Maharashtra & Ors (www.legalservices.com)
➢ Sanjay S Prajapati v. State of Maharashtra (thehindu)
➢ Pravat Kumar Mukerjee v. Ruby General Hospital 2005 CPJ 35 (NC)
➢ Suo Moto v. State of Gujarat, WP PIL No. 42/2020

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LEGAL DICTIONARIES:
➢ Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).

➢ Greenberg Daniel, Stroud’s Judicial Dictionary of Words and Phrases, (4th ed.),
Sweet and Maxwell, Vol. 4.
➢ Mish F.C., Merriam-Webster's Collegiate Dictionary, (11th ed. 2003).
➢ Garner B.A., Black’s Law Dictionary, (9th ed., 2009).
➢ Oxford Advanced Learners Dictionary, (7th ed., 2008)

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
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 226 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 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
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(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
THE PRESENT MEMORANDUM SETS FORTH THE FACTS,

CONTENTIONS AND ARGUMENTS.

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
STATEMENT OF FACTS
The Counsel most respectfully SHOWETH:

For the sake of brevity and convenience of the Hon’ble Court the facts of the present
case are summarized as follows:
THE OUTBREAK OF PANDEMIC
• 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.
• Coronavirus disease (COVID-19) is an infectious disease caused by a newly
discovered coronavirus. Most people infected with the COVID-19 virus will
experience mild to moderate respiratory illness and recover without requiring
special treatment.

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COVID-19 IN INDIVA
• Covid-19 the deadly corona virus hit the Indiva’s shores on January, 2020. The
virus spread quickly across Indiva affecting several thousands of people across
multiple states. The central government in line with the advisory of the World
Health Organization (WHO) instructed its citizens to maintain social distancing.
There were many protocols issued by the Ministry of Health department in the
state of Saurashtra. Bombai is a densely populated city on Indiva’s western state
Saurashtra which is also badly affected by the pandemic.
THE DISPUTE
• Most recently, Mr. Ganesh Gaitonde, resident of Bombai Age 61 years tested
positive for corona virus on 3rd July, 2020. He was admitted to the Sanjay
Private Hospital. He was admitted for 7 days in covid – 19 isolation ward and 3
days in intensive care unit (ICU). The family members were asked to bring
medication on their own.
• Mr. Gaitonde’s family has already paid 42,800/- as instructed by the Hospital.
Other than this, the family members were asked to purchase medicines
unnecessarily without using it for the treatment of concerned patient. The
doctors, nurses and other hospital staff persons were not wearing proper PPE
kits, yet they added those charges in the bill. The patient was only provided with
a bed in the isolation ward in ICU along with meals 3 times a day provided by
the Hospital.
• The patient was admitted in the Hospital for about 10 days and then died on 13th
July, 2020. The hospital gave a bill amount of Rs. 9,50,000/- and detained the
body of the deceased until the bill was due. Moreover, Mr. Gaitonde’s family
has paid about Rs. 50,000/- as deposit money while admitting the patient and
Rs. 2,00,000/- of the bill.

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EPILOGUE
• LOK SWASTHYA ABHIYAAN, an NGO in the city of Bombai, after

witnessing the poor conditions of common man with regard to various inhuman
activities and exploitation of the general public by the Private Hospitals in the
name of Covid-19 treatments have filed a PIL before this Hon’ble Court of
Saurashtra against State of Saurashtra. Many cases have come up with almost
same situation one of them is the case of Mr. Ganesh Gaitonde.
• The petitioner believes that, ‘Healthcare in Healthcare institutions/hospitals

often hold patient’s “hostage” long after they should be medically discharged,
using armed guards, locked doors and even chains to extract money for unpaid
bills. Even death does not guarantee release as morgues hold dead bodies for
unpaid hospital bills. By illegally detaining the patient, the hospital is curtailing
the personal liberty of the patient so detained’.

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
TIMELINE
• December, 2019- worldwide pandemic broke out named COVID-19

(Corona Virus Disease).
• 11th March, 2020- World Health Organization (WHO) officially declared it
as a global pandemic.
• January, 2020- Covid-19 hit the Indiva’s shores.
• 3rd July, 2020- Mr. Ganesh Gaitonde, aged 61 years tested positive for corona
virus and was admitted to the Sanjay Private Hospital for 7 days in Covid –
19 isolation ward and 3 days in intensive care unit (ICU).
• 13th July, 2020- Mr. Ganesh Gaitonde died. The hospital gave a bill amount
of Rs. 9,50,000/- and detained the body of the deceased until the bill was due.
His family has already paid 42,800/- and also paid about Rs. 50,000/- as
deposit money while admitting the patient and Rs. 2,00,000/- of the bill.
• 15th July,2020- The PIL was filed by the NGO.

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
ISSUES RAISED
ISSUE 1:
Whether the Hon’ble High Court has the jurisdiction to entertain the said PIL and is the
PIL maintainable in the Hon’ble High Court?
ISSUE 2:
Who is the necessary party here is it the Hospital or the Government in the petition?
ISSUE 3:
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?

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
SUMMARY OF ARGUMENTS
ISSUE 1: Whether the Hon’ble High Court has the jurisdiction to entertain the
said PIL and is the PIL maintainable in the Hon’ble High Court?
It is humbly submitted before the Hon’ble Court that the said PIL is maintainable
under Article 226 of the Constitution of Indiva. The petitioner, have the locus standi
to file the said petition to protect the interest of the general public. As the respondent,
i.e. the State Government is being irresponsible and negligent on the side of Hospital
Authorities and not taking any serious actions against the corrupt practices of the
Hospitals. The Hon’ble Court can grant the Writ of Mandamus for the same. The
PIL is maintainable, and on account of the same relief is sought.
ISSUE 2: Who is the necessary party here is it the Hospital or the Government in
the petition?
It is humbly submitted before the Hon’ble Court that the necessary party in this
petition is the State of Saurashtra but the hospital authority is also responsible for
charging exorbitant bills to everyone and for detaining the body of the deceased
person. The petitioner, the NGO seeks to direct the State Government to issue proper
rules and regulations, guidelines even for the Private Hospitals treating Covid-19
patients. Also, to look after whether the laid guidelines are being properly followed
by the public or private hospitals too, and serious actions must be taken against them

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if violated. The petitioner also prays for the compensation to be paid by the Hospital
Authorities to the aggrieved person.
ISSUE 3: 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?
It is humbly submitted before this Hon’ble Court that the right to decent burial is
included in the fundamental right of right to live guaranteed under Article 21 of the
Constitution of Indiva. The Indivian Constitution has ensured the Right to life and a
dignified life under Article 21 as a fundamental right and the Hon’ble Apex Court
through various cases has held that the right to dignity and fair treatment is not only
available to a living man but also his body after his death. The petitioner also seeks
to direct the Hospital Authorities not to detain the body of any deceased person only
for the purpose of recovery of payment of their bill.

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SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
ARGUMENTS ADVANCED
ISSUE 1: Whether the Hon’ble High Court has the jurisdiction to entertain the
said PIL and is the PIL maintainable in the Hon’ble High Court?
THE HON’BLE HIGH COURT HAS THE JURISDICTION TO ENTERTAIN THE

SAID PIL AND THE PIL IS MAINTAINABLE.
1. It is respectfully submitted that the Petitioner have filed the instant Public
Interest Litigation before this Hon’ble High Court under Art. 226 1 of the
Constitution of Indiva. The petitioner has approached this Hon’ble Court for the
grant of writ of mandamus seeking for proper guidelines, rules and regulations
for Private Hospitals treating covid-19 cases in regard of exorbitant bills. Also,
taking strict actions against the rule breakers as soon as possible.
2. It is humbly submitted before this Hon’ble Court that whenever a question of
law of general public importance arises the jurisdiction can be invoked. The
jurisdiction conferred under Art. 226 on the High Court are corrective one and
not a restrictive one. A duty is enjoined upon the High Court to exercise its power
by setting right the illegality in the judgments is well-settled that illegality must
not be allowed to be perpetrated and failure by the High Court to interfere with
the same would amount to allowing the illegality to be perpetuated. It has been
held in plethora of cases that when the question of law of general public
1 Article 226 of the Constitution of Indiva, 1949.

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importance arises, the jurisdiction of High Court can be invoked. In the present
case, the issue involves matter of General Public Importance and hence, entitled
to be maintainable.
3. It is humbly submitted before the Hon’ble Court that the remedy under Article
226 of the Constitution is discretionary remedy. The Court is vested with power
to entertain the petition where there occurs gross miscarriage of justice and
effective remedy is not available. This rule of exhaustion of the statutory remedy
is not rigid but somewhat flexible and it is primarily a matter of the discretion of
the writ court.
4. It is most humbly submitted that, the Constitution of Indiva under Article 21 of
Right to Life and Liberty2 also entails the right to proper healthcare facilities to
the people. It also includes the right to die with dignity and the right to decent
burial and many more and the same basic and most fundamental rights of citizens
of Indiva is being exploited by private hospitals in the name of covid-19
treatments.
5. The private hospitals are exploiting the interest of common man for their own
benefit rather than helping them in this difficult covid-19 pandemic situation.
6. Many other cases have also been filed in almost all the Court in the country and
the number of cases is increasing at an alarming stage. There is an urgent need
to put a full stop or at least to restrict the private hospitals so that the welfare of
the people prevails.
SINCE, THE FUNDAMENTAL RIGHTS OF THE CITIZENS ARE IN DANGER,

THE PRESENT PIL IS MAINTAINABLE IN THIS HON’BLE COURT AND THE
COURT HAVE ALL THE RIGHTS TO ENTERTAIN THIS MATTER IN
QUESTION.
2
Maneka Gandhi v. Union of India: AIR 1978 SC 597.
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ISSUE 2: Who is the necessary party here is it the Hospital or the Government in
the petition?
THE STATE I.E. GOVERNMENT OF SAURASHTRA AND SANJAY PRIVATE

HOSPITAL, BOTH ARE THE NECESSARY PARTIES IN THE SAID PIL.
7. Saima Furqan’s 60-year-old uncle was admitted to Ganga Ram Hospital in Delhi
with Covid-19 in April. After 30 days in the private hospital, the family was
given a 122-page bill and charged Rs 16,14,596.
8. A 74-year-old Mumbai man who was admitted in April to the private Tatavati
Hospital with pneumonia and Covid-19. He died 13 days later. The family
received a bill of Rs 16,44,714.
9. The already mentioned case of Mr. Ganesh Gaitonde and a lot of cases have been
filed every day. Private hospitals under the garb of “utmost safety and care” had
been abusing the absence of price cap by the government on the cost of the
treatment.
10. According to an analysis by the National Pharmaceuticals Pricing Authority
(NPPA), it was held that private hospitals in Delhi and the national capital region
(NCR) are making profits of up to 1,700% on drugs, diagnostics and
consumables and forcing consumers to buy from their in-house pharmacies.
11. Based on complaints received from the public during visits to various hospitals
the State government of Karnataka too, has decided to amend the Karnataka
Private Medical Establishment Act, 2007 to ensure treatment on the principle of
“treatment first, payment later” in all private hospitals stating Private medical
establishments should not be for “only profit” but render service to the public.
12. Private hospitals are charging huge amount of money for the Covid care
treatment and are trying to make the most of the grim scenario without realizing
people’s financial miseries by detaining the dead bodies, taking unacceptable
undertakings from them, etc.in order to recover the fees charged.
13. In Pravat Kumar Mukerjee v. Ruby General Hospital3, the National Consumer
Disputes Redressal Commission held that "Though a doctor is not bound to treat
each and every patient, but in emergencies the doctor is bound to treat the patient
and could not insist on delaying treatment until the fees were paid".
3 Pravat Kumar Mukerjee v. Ruby General Hospital 2005 CPJ 35 (NC)

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14. In times of crisis when people are dying, the Association should not think of
even making profit of one rupee. The private hospitals have the adequate
infrastructure and materials and financial resources required to fight this
pandemic. All the hospitals whether private or public are considered moral agent
and hence have a moral responsibility. The responsibility to act in certain ways
falls upon those who may make up these hospitals," the bench comprising Chief
Justice Vikram Nath and Justice JB Pardiwala observed.
HENCE, THE HOSPITAL AUTHORITY IS RESPONSIBLE FOR THE
MENTAL AGONY OF THE DECEASED PERSON’S FAMILY.
15. Under the Clinical Establishment and Regulations Act, 2012, and the Clinical
Management Protocol- Covid-19 by the Ministry of Health, the Government of
Indiva has outlined the proper and reasonable care that every clinical
establishment for the treatment of the COVID-19 infection must follow. It states
the risk factors, clinical features and its severity, the diagnosis, prevention and
control practices, management of cases depending on its gravity (mild,
moderate, and severe), and the complications, that the healthcare institutions and
officials have to keep in mind while battling with the pandemic. Under section
52 of the Act, the Central and the State Government has the power to enact and
regulate laws in the determination of the standards of the facilities and services
16. The Disaster Management Act, 2005 states that the Right to Health and
assurance of proper care and services under the responsibility of the State and
the Government shall address the grievances. Under Section 25 of the Act, an
authority for disaster management at the national, state, district, and local levels
is created to address the issues and the complications in the times of a disaster
or other sort of calamity mentioned herein. Under the act, the people of the nation
can seek help from the right forum for the redressal of their grievances or for
seeking information under the Act. The cognizance of the offenses under this act
would be under the National, State, District, and Local Authority for speedy and
fast redressals.
17. It is humbly submitted that, while all sectors of society are involved in pandemic
preparedness and response, the Government is the natural leader for overall
coordination and communication efforts. Under the Constitution of Indiva,
public health and sanitation are the responsibilities of the state and local

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governments while the union government manages post quarantine, inter-state

migration and quarantine.
18. In Suo Moto v. State of Gujarat, ‘The Hon’ble Gujarat High Court emphasized
that private medical institutions are also expected to "rise to the occasion" in
these times of crisis and it directed the State Government to keep a close watch
on all the designated private hospitals to ensure that these institutions do not
exploit the Covid patients.
19. It is further submitted that the Epidemic Diseases Act, 1897 was designed itself
to put government machinery into action once there is a considerable threat of a
dangerous epidemic disease.
20. The test of legitimate aim is satisfied by the Epidemic Diseases Act, 1897 as its
function is to prevent the spread of a dangerous epidemic disease. It is impossible
to define specific proportionate regulations for a novel infectious disease in a
parent law. Therefore, the law provides for delegated legislative power to the
states.
21. Taking serious cognizance of the reports of highly exorbitant charges being
levied by the private hospitals from the COVID patients in the state, the Punjab
Health and Family Welfare Minister, Balbir Singh Sidhu too warned of stringent
action against all such hospitals, including cancellation of licenses, who are
trying to exploit the pandemic situation.
22. Hence, the State of Saurashtra must use the power vested upon them and enforce
certain rules and regulations for the private hospitals to put a cap on the prices
or fix a rational price range for the Covid-19 treatment taking all the challenges
into consideration.
23. The State ought to have certain provisions to monitor the functioning of private
hospitals and take such necessary steps to regulate the ‘exorbitant’ fees charged
as it is absolutely unjustified and deserves to be deprecated. Also, if private
hospitals do not budge and continue to demand exorbitant amount, then stringent
action must be taken including cancellation of license.
HENCE, THE GOVT IS ALSO RESPONSIBLE FOR NOT REGULATING
THE PRIVATE HOSPITALS PROPERLY.
PERTAINING TO THE ABOVE-MENTIONED REASONS THE STATE AS WELL
AS THE SANJAY PRIVATE HOSPITAL, BOTH ARE CONSIDERED TO BE THE
NECESSARY PARITES IN THE SAID PETITION.
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ISSUE 3: 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 LEGAL AND FUNDAMENTAL RIGHT OF RIGHT

TO DECENTBURIAL OF THE DECEASED MR. GANESH GAITONDE.
24. Article 21 of the Constitution of Indiva guarantees to the people the right to
personal liberty and prohibits any inhuman treatment. The Hon’ble Supreme
Court of Indiva in the case of Consumer Education and Research Centre v.
Union of India held that Article 21 read along with the relevant directive
principles guaranteed in Articles 39(e), 41 and 43 shows that the right to health
and medical care is a fundamental right and it makes the life of person
meaningful and dignified.
25. The case in Puducherry and another order given by Bombay HC on 22nd May
emphasizes that, "Right to a decent burial, commensurate with the dignity of the
individual, is recognized as a facet of the right to life guaranteed by Article 21
of the Constitution. There is, thus, no reason as to why an individual who dies
during this period of crisis because of suspected/confirmed COVID-19 infection
would not be entitled to the facilities he/she would have otherwise been entitled
to but for the crisis".
26. The Hon’ble Apex Court in Pt. Parmanand Katara vs. union of India 4 held that,
"the word and expression person in Article 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. The State must respect a dead person by
allowing the body of that dead person to be treated with dignity and unless it is
required for the purposes of establishing a crime, to ascertain the cause of death
and be subjected to post - mortem or for any scientific investigation, medical
education or to save the life of another person in accordance with the law, the
preservation of the dead body and its disposal in according with human dignity."
27. In another important case of Jamuna Das Paras Ram v. State of Madhya
Pradesh, the High Court of Madhya Pradesh held that "the word person cannot
4
Pt. Parmanand Katara vs. union of India (1995 3 SCC 248)
Page | 21
be so narrowly construed has to exclude the dead body of human being, i.e. the
human body must be given the right, irrespective of being alive or dead".
28. A Public Interest Litigation (PIL) plea has been moved in the Calcutta High
Court seeking to direct the authorities to hand over the dead bodies of persons
who have died on account of COVID-19 to the family members for
burial/cremation (Vineet Ruia v. Principal Secretary, Ministry of Health &
Family Welfare, Govt of West Bengal & Ors5).
29. Even if the bill would have been charged properly, the hospital authority has no
right to detain the body of the deceased due to non-payment of bills. Confining
a person in a hospital without lawful justification will amount to wrongful
confinement as defined under Section 340 of the Indivian Penal Code, 18606.
30. In Devesh Singh Chauhan v. State & Ors7 the Hon’ble Delhi High Court had
asked for the release of a patient held hostage over a disputed bill saying, "even
if dues are outstanding, custody of patients cannot be withheld to extract money
towards unpaid bills. We deprecate this practice."
31. Despite the rights enshrined in the Constitution of Indiva, it is not uncommon
for hospitals to detain a person on account of unpaid bills or holding a dead body
of a deceased. Such practice is not only illegal but squarely inhuman and
torturous for the person detained as well as for the relatives of such person.
32. The Hon’ble High Court of Bombai in Trevor Nerves Britto v. State of
Maharashtra & Ors 8 held, “...though hospitals have a right to recover the
amount which is due and payable by the patient, they cannot resort to detention
of patient on that pretext. At the same time some type of mechanism has to be
evolved in order to recover the rightful dues of the hospital.”
33. The Hon’ble High Court of Bombai in Sanjay S Prajapati v. State of
Maharashtra9, while considering a PIL, stated that “...this court has already held
that detention of patients by hospitals for non-payment of bills/charges will
amount to wrongful confinement. Therefore, the State Government will have to
provide adequate grievance redressal mechanism so that relatives of the patient
can approach appropriate nominated authority which can take immediate action
5
Vineet Ruia v. Principal Secretary, Ministry of Health & Family Welfare, Govt of West Bengal & Ors
6
Indian Penal Code, 1860
7
Devesh Singh Chauhan v. State & Ors (2017 SCC OnLine Del 8130)
8
Trevor Nerves Britto v. State of Maharashtra & Ors
9
Sanjay S Prajapati v. State of Maharashtra
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within the four corners of law including the action of setting the criminal law in
motion.
34. The above-mentioned statutes, case-laws, etc. clearly states that the right to
decent burial is the basic fundamental right and the hospital authority cannot
detain a body for the recovery of due bills at any cost. So, the fundamental right
of the deceased, i.e. petitioner’s father has been infringed by the hospital
authority.
35. As far as the respondent, State Government is concerned, the Ministry of Health
and Family Welfare released a ‘Charter of Patient Rights 10’ in 2018 laying down
the 17 basic rights of a patient. This Draft Charter is prepared by the National
Human Rights Commission (NHRC) drawing inspiration from various national,
international and constitutional obligations, including the Constitution of Indiva,
the Indivian Medical Council (Professional Conduct, Etiquette and Ethics)
Regulations 2002 11 , the Consumer Protection Act 1986 12 , the Drugs and
Cosmetic Act 194013 and the Clinical Establishment Act 2010 14.
36. In its present form, the draft charter aims to provide protection against hospital
malpractices by granting certain rights to the patients. particularly the right to be
discharged. It states: “A patient has the right to be discharged and cannot be
detained in a hospital, on procedural grounds such as [a] dispute in payment of
hospital charges. Similarly, caretakers have the right to the dead body of a patient
who had been treated in a hospital, and the dead body cannot be detailed on
procedural grounds, including non-payment/dispute regarding payment of
hospital charges against wishes of the caretakers”.
37. Other important rights enshrined under the draft charter includes the right to
adequate and relevant information about illness and treatment, right to
emergency medical care without any conditions, right to informed consent
before any test or treatment, right to confidentiality as well and human dignity
and privacy, right to a second opinion, right to transparency in rates, right to non-
discrimination and right to redressal in case of complaints against a doctor or
hospital.
10
Charter of Patient Rights
11
the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002
12
the Consumer Protection Act 1986
13
the Drugs and Cosmetic Act 1940
14
the Clinical Establishment Act 2010
Page | 23
38. Though the draft is made tremendously good for the benefit and welfare of
citizens, the draft is still not coming into force. Its only on the paper and only
the idea of enforcing such rules are spread. The respondent, i.e. the State needs
to enforce such rules as early as possible.
39. According to the Indivian Medical Council (Professional conduct, Etiquette and
Ethics) Regulations, 2002 The physician engaged in the practice of medicine
shall give priority to the interests of patients. The personal financial interests of
a physician should not conflict with the medical interests of patients. A physician
should announce his fees before rendering service and not after the operation or
treatment is under way. Remuneration received for such services should be in
the form and amount specifically announced to the patient at the time the service
is rendered. It is unethical to enter into a contract of “no cure no payment”.
Physician rendering service on behalf of the state shall refrain from anticipating
or accepting any consideration.
40. In Escort Heart Institute & research centre vs Adeer Ur Rehman 15 it was
observed by the Delhi high court that, “Merely because the consent form was
signed by the caretakers of the patient at the time of admission of his father in
the hospital would not make him liable to pay for each and every bill raised by
the hospital authorities. The final summary bill was needed to be proved and
justified by bringing on record some reliable and cogent evidence in support
thereof. But nothing was mentioned on record to establish charges levied by the
hospital authorities towards the medical treatment.
41. According to the Section 2 of the Epidemic Diseases Act,1897 16 which states
that, “Power to take special measures and prescribe regulations as to dangerous
epidemic disease.--(1) When at any time the State Government is satisfied that
the State or any part thereof is visited by, or threatened with, an outbreak of any
dangerous epidemic disease, the State Government, if it thinks that the ordinary
provisions of the law for the time being in force are insufficient for the purpose,
may take, or require or empower any person to take, such measures and, by
public notice, prescribe such temporary regulations to be observed by the public
or by any person or class of persons as it shall deem necessary to prevent the
15
Escort Heart Institute & research centre vs Adeer Ur Rehman (Cs Dj: 10433/16)
16
the Epidemic Diseases Act,1897
Page | 24
outbreak of such disease or the spread thereof, and may determine in what
manner and by whom any expenses incurred (including compensation if any)
shall be defrayed.
42. The above-mentioned section clearly states that there is the power in the hands
of State Government to restrict the private hospital during this pandemic
situation, so the respondent must use their power for the betterment of the
citizens of Indiva.
HENCE, THERE IS A VIOLATION OF LEGAL AND FUNDAMENTAL RIGHT OF
RIGHT TO DECENT BURIAL OF THE DECEASED MR. GANESH GAITONDE.

Page | 25

SITTING AT: BOMBAI
PIL. No.______ Of 2020

V/S.
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, adjudge, and declare that:
I. To issue writ 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 of excessive
medical charges illegally.
II. To issue writ/ direction to the Respondent No.1 to direct the private hospitals to
follow the rules issued by the Govt. of Saurashtra.
III. Pending the hearing and final disposal of this PIL, the Respondent No. 1 be
directed to direct the private hospitals no to withheld any dead body for want of
payment of excessive medical bills.
IV. Interim/ ad-interim relief in terms of prayer clause (IV) be granted.
V. To declare that right to decent burial under Article 21 is violated of the deceased
Mr. Gaitonde.
VI. It be directed the private hospitals to compensate the affected persons.
And/or, pass any other order that it may deem fit in the favour of the Petitioner to
meet the ends of equity, justice and good conscience.

Page | 26
For this act of Kindness, the Petitioner shall duty bound forever pray.
FILED BY:
COUNSEL FOR THE PETITIONER
DRAWN:
FILED ON:

Page | 27

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Asmita College of Law 1st Intra College Moot Court (2020-21)

IN THE HON’BLE HIGH COURT OF JUDICATURE AT SAURASHTRA

PUBLIC INTEREST LITIGATION

PIL. No.______ Of 2020

UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIVA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

UPON SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE AND OTHER

THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED

Memorial on Behalf of Petitioner

Sr. No PARTICULARS PAGE NO.

2 INDEX OF AUTHORITIES 4-6

3 STATEMENT OF JURISDICTION 7-8

4 STATEMENT OF FACTS 9-11

7 SUMMARY OF ARGUMENTS 14-15

8 ARGUMENTS ADVANCED 16-25

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

• AIR - All India Reporter

• SCC - Supreme Court Cases

• www - World Wide Web

• UOI - Union of India

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

➢ Indian Constitutional law by Durga Das Basu, 4th Edition

Memorial on Behalf of Petitioner

➢ Hospitals & The Law

➢ Maneka Gandhi v. Union of India: AIR 1978 SC 59

Memorial on Behalf of Petitioner

➢ Aiyer P.R., Advanced Law Lexicon, (3rd ed., 2005).

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

THE PETITIONER HAS FILED THE PUBLIC INTEREST LITIGATION IN

Article 226 of the Constitution of Indiva

226. Power of High Courts to issue certain writs

THE PRESENT MEMORANDUM SETS FORTH THE FACTS,

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

The Counsel most respectfully SHOWETH:

• In December, 2019 a worldwide pandemic broke out due to the contagious

Memorial on Behalf of Petitioner

Memorial on Behalf of Petitioner

• LOK SWASTHYA ABHIYAAN, an NGO in the city of Bombai, after

• The petitioner believes that, ‘Healthcare in Healthcare institutions/hospitals

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

• December, 2019- worldwide pandemic broke out named COVID-19

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

Memorial on Behalf of Petitioner

Memorial on Behalf of Petitioner

IN THE HON’BLE HIGH COURT OF JUDICATURE FOR SAURASHTRA

LOK SWASTHYA ABHIYAAN ......….PETITIONER

THE HON’BLE HIGH COURT HAS THE JURISDICTION TO ENTERTAIN THE