I

Team Code: MCC-B

BEFORE THE HONOURABLE SUPREME COURT OFANANISTHAN

IN THE MATTERS OF

PUHR AND OTHERS ….PETITIONERS

v.
THE UNION OF ANANISTHAN ….RESPONDENT

FOR THE KIND ATTENTION OF THE HONOURABLE CHIEF

JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME
COURT

MEMORANDUM FOR PETITIONERS

 II

TABLE OF CONTENTS

TABLE OF ABBREVIATIONS........................................................................... III

INDEX OF AUTHORITIES…………………………………………......…….. IV

STATEMENT OF JURISDICTION…………………………………....……. VII

STATEMENT OF FACTS………………………………………….………. VIII

STATEMENT OF ISSUES…………………………………………........…….... X

SUMMARY OF ARGUMENTS……………………………………......………. XI

ARGUMENTS ADVANCED…………………………...…………………….. XIII

PRAYER FOR RELIEF….........………………................................................ XXX

MEMORANDUM FOR PETITIONERS

 III

LIST OF ABBREVIATIONS

& And
¶ Paragraph
¶¶ Paragraphs
A.I.R. All India Reporter
A.I.R.S.C.W. All India Reporter Supreme Court Weekly
Art Article
CONST Constitution
Cr.L.J. Criminal Law Journal
DPSP Directive Principles of State Policy
Ed Edition
I.P.C. Indian Penal Code
Ors. Others
S.C. Supreme Court
S.C.A.L.E. Supreme Court Almanac
S.C.C. Supreme Court Cases
S.C.R. Supreme Court Reports
Sec Section
TOI Times of India
v. Versus
w.e.f. With effect from

INDEX OF AUTHORITIES

MEMORANDUM FOR PETITIONERS

 IV

A. STATUTES
1. Constitution of India, 1950
2. Indian Penal Code, 1860
3. Registration of Births and Deaths Act, 1969
4. Transplantation of human organs (amendment) act, 2011
5. Transplantation of human organs act, 1994
6. United Declaration of Human Rights, 1948

B. BOOKS & ARTICLES REFERRED

1. DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA, vol. 2, 2007
2. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, vol. 3, 8th ed., 2008
3. Eman S Hassan, Effect of chronic renal failure on voice: an acoustic and aerodynamic
analysis, The Egyptian Journal of Otolaryngology, 30(1): 53-57 (2014)
4. H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 4th ed., vol. 2, 2007

5. International Guidelines for the Determination of Death- Phase I, May 30-31, 2012
Montreal
6. Law Dictionary, Thomas & West, U.S.A, 1990, 9th edition
7. M.P. JAIN INDIAN CONSTITUTIONAL LAW, Justice Ruma Pal, Samaraditya Pal, eds., 6th
ed. 2010
8. Parliamentary Report, Parliament of Australia, Dec 3, 2018
9. Preetu Nair, organ is free, transplant cost is problem, TOI, sep 5, 2016
10. Shailvee Sharda, Deaths due to renal failure, TOI, Dec 14, 2016
11. Tania Goklany, NDTV-Fortis More to Give Campaign (August 22, 2017)
12. The Anzics Statement on Death and Organ Donation.2008
13. Wijdicks EF, Varelas PN, Gronseth GS, Greer DM. Evidence based guideline update:
determining brain death in adults: report of the Quality Standards Subcommittee of the
American Academy of Neurology. Neurology 2010

MEMORANDUM FOR PETITIONERS

 V

C. WEBSITES REFERRED
1. www.cdjlawjournal.com
2. www.lawctopus.com
3. www.lexisnexisacademic.com
4. www.mohanfoundation.org
5. www.ncbi.nlm.nih.gov

D. CASE LAWS CITED

1. Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 : (1980) 2 S.C.C. 684
2. Bandhua Mukti Morcha v. Union of India, A.I.R.1997 S.C. 2218 : (1997) 10 S.C.C. 549
3. Bodhisattwa Gautam v. Subbra Chakraborthy, A.I.R. 1996 S.C. 722 : (1996) 1 S.C.C.
490

4. CERC v. Union of India, A.I.R. 1995 S.C. 922 : (1995) 3 S.C.C. 42

5. Chairman, Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988: (2000)2 S.C.C. 465
6. Chiranjit Lal v. Union of India, A.I.R. 1951 S.C. 41
7. D K YADAV v. J.M.A. industries, (1993) 3 S.C.C. 259
8. Deena v. Union of India, A.I.R. 1983 S.C. 1155 : (1983) 4 S.C.C. 645
9. Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, (1996) 3 S.C.C. 345
10. Francis Coralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746 at 753 : (1981) 1
S.C.C. 608

11. Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946 at 652 : (1996) 2 S.C.C. 648
12. Gnaneshwar B. Pettukota v. Govt. Of India, (2005) 12 S.C.C. 447

13. Greenfields v. The Queen, 1958 S.C.R. 216

14. Javed v. State of Haryana, (2003) 8 S.C.C. 369 : A.I.R. 2003 S.C. 3057
15. L.K. Venkat v. Union of India, A.I.R. 2012 S.C. 2503 : 2012 CR.L.J. 2522 : 2012
A.I.R.S.C.W. 2681 : 2012 (5) S.C.A.L.E. 35
16. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C.597 : (1978) 1 S.C.C. 248
17. Mujeeb Bhai v. State of U.P , civil misc. Writ petition no.38985 of 2004, high court of
judicature at Allahabad
18. Munn v. Illinois, 94 U.S. 113

MEMORANDUM FOR PETITIONERS

 VI

19. Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180 : (1985) 3 S.C.C.
545
20. P. Rathinam v. Union of India, (1994) 3 S.C.C. 394 : A.I.R. 1994 S.C. 1844
21. Paschim Benga Khet Mazdoor Sanity v. State of West Bengal, A.I.R. 1996 S.C. 2426 :
(1995) 6 S.C.C. 213
22. Pt. Parmanand Katara, Advocate v. Union of India, (1995) 3 S.C.C. 248
23. Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124 : 1950 S.C.R. 594

24. Vincent v. Union of India, A.I.R. 1987 S.C. 990 : (1987) 2 S.C.C. 165

STATEMENT OF JURISDICTION

MEMORANDUM FOR PETITIONERS

 VII

I. The Petitioner No. 1 has approached this Hon’ble Court under Art. 32 of the
Constitution. Leave has been granted accordingly.

II. The Petitioner No. 2 has approached this Hon’ble Court under Art. 139A of the
Constitution. The Supreme Court transferred the case on its own motion.

III. The Petitioner No. 3 has approached this Hon’ble Court under Art. 139A of the
Constitution. The Supreme Court transferred the case on its own motion.

IV. The Petitioner No. 4 has approached this Hon’ble Court under Art. 139A of the
Constitution. The Supreme Court transferred the case on its own motion.

STATEMENT OF FACTS

MEMORANDUM FOR PETITIONERS

 VIII

I. Background

Ananisthan is a democratic republic with a federal system having Constitution, laws, institutions
and social ethos of Ananisthan are substantially similar to that of India. Nyayasthan is a state
located in the south-western coast of Ananisthan.

II. Transplantation of human organs act, 1994

Ananisthan enacted legislation in the year 1994 (Transplantation of Human Organs Act) and
thereby prohibited commercial transactions in human organs. The Act was amended in 2011
thereby defining and including ‘brain-stem death’ as a criterion for organ harvesting. The
procedure to be followed in order to ascertain if the person is brain dead was laid down in the
Rules made in pursuance of the said provisions. The statute also gave thrust to living donations,
with certain regulations prescribed under the Act.

III. Events

Amit, a daily wage labourer, met with an accident and was diagnosed with traumatic brain
injury and needed a surgery that cost around INR 5 Lakh rupees. A stranger advised Mrs. Amit
to donate a kidney of hers and having no other way to raise the money she obliged.

Meanwhile, a famous playback singer Gautham was diagnosed with kidney failure and was
advised for immediate kidney transplantation. His name was included in the list of recipients
prepared by the Govt. of Nyayasthan, which would take a minimum of 2 years before getting the
matching organ for transplantation.

IV. Litigations

NEETHI, an NGO, came to know about the transactions involved in human organs, approached
the High Court of Nyayasthan for a direction for proper implementation of the statute as it has
failed to prevent commercial transactions in human organs.

A Government Neurologist, Dr.Vasundhara Das filed a Writ Petition in the High Court of
Nyayasthan seeking an order to probe into the certification of brain stem deaths by the private
hospitals in the state.

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 IX

Gautham approached the High Court of Nyayasthan stating that his right to health is affected;
thereby his right to life is endangered as the state is unable to facilitate the organ transplantation
surgeries. He pleaded the High Court to issue a direction to the State to protect his right to
health.

V. Amendment

High Court of Nyayasthan decided to consider all these matters together. Meanwhile, Union
parliament amended the Transplantation Act laying down the procedure to be followed for
the certification of brain stem death. The amendment also added another provision that the body
of the brain stem dead persons can be used by the State to harvest the transplantable organs in
the most effective way. It hurt the religious sentiments of various sections of the society.

VI. The Resultant Litigation

Peoples Union for Health Rights (PUHR), an NGO working in the healthcare sector in
Ananisthan, approached the Supreme Court of Ananisthan challenging the constitutional
validity of the amendment. Supreme Court of Ananisthan took the matter in file and called for
all the cases pending before the High Court on the same subject matter.

STATEMENT OF ISSUES

MEMORANDUM FOR PETITIONERS

 X

I. Whether the public interest litigation filed by PUHR and the cases transferred
from High Court of Nyayasthan are maintainable before the Supreme Court
of Ananisthan.

II. Whether a direction should be issued for the proper implementation of

Transplantation of Human Organs Act, 1994?

III. Whether an order should be issued probing into the certification of brain stem
deaths by private hospitals?

IV. Whether a direction should be issued to the State to protect Gautham’s right
to life?

V. Whether the amendment permitting State to harvest transplantable organs

from brain stem dead persons is constitutionally invalid?

SUMMARY OF ARGUMENTS

MEMORANDUM FOR PETITIONERS

 XI

1. The public interest litigation filed by PUHR and the cases transferred from High
Court of Nyayasthan are maintainable before the Supreme Court of Ananisthan.

The amendment permitting State to harvest transplantable organs from brain stem dead
persons is violative of Art. 21 of the Constitution. Therefore, by virtue of provisions
enshrined in Art. 32 of the Constitution, PUHR can directly approach the Supreme Court
seeking redressal against violation of a fundamental right.
The discretionary power of the Supreme Court to transfer cases pending in one or more
High Courts to itself under Art. 139A of the Constitution was exercised by the Court in
this instance and thereby, transferred cases relating to NEETHI, Dr. Vasundara Das and
Gautham pending before the High Court of Nyayasthan.

2. A direction should be issued for the proper implementation of Transplantation of

Human Organs Act, 1994.

The blatant failure of the State in preventing commercial transactions shows the existing
condition of the statute in the society. No actions were undertaken neither to punish the
offenders nor to prevent future events of the same calibre. This warrants a direction from
the Court to properly implement the statute. Only with such a direction can the proper use
of the statute be available to every factions of the society.

3. An order should be issued probing into the certification of brain stem deaths by
private hospitals.

The main objective of a private hospital is to maximise profits. Organ transplantation

surgeries are highly expensive through which they can derive more profits. As a result
they tend to harvest human organs from persons by manipulating the results and
certifying them as brain stem death. The manipulability and non finality of the tests
increases the risk of false certifications of brain deaths. This is essentially against the

MEMORANDUM FOR PETITIONERS

 XII

right to life and therefore, is liable to be enquired upon. As it stands , there is a great risk
of approaching private hospitals in these cases and necessitates a probe into this issue.

4. A direction should be issued to the State to protect Gautham’s right to life.

Gautham is a playback singer suffering from kidney failure and is unable to procure a
kidney for transplantation from the government for atleast the next two years. Also, the
government having prohibited commercial transactions, he cannot secure a kidney by
paying his own money to a consenting donor. This endangers the life of Gautham and is
badly affecting his health. Also, the kidney failure also directly affects his voice
negatively which also cost Gautham his livelihood. Thereby, the inaction of the State
violates right to health as well as right to livelihood, bith enshrined within the purview of
Art.21.

5. The amendment permitting State to harvest transplantable organs from brain stem
dead persons is constitutionally invalid.

Dead persons also have the right to dignity within Art.21. The amement permitting the
State to harvest transplantable organs is violative of the dignity provided in right to life. It
also protects a person from being mutilated. Fair treatment to the body is the right of a
person even after death. Thus, this amendment infringes two provisions of right to life for
which it is liable to be quashed by the Supreme Court.

ARGUMENTS ADVANCED

MEMORANDUM FOR PETITIONERS

 XIII

1. The public interest litigation filed by PUHR and the cases transferred from High Court
of Nyayasthan are maintainable before the Supreme Court of Ananisthan.

The case of PUHR is maintainable before the Supreme Court by virtue of Art. 32 for
infringement of fundamental rights and the cases transferred by the Supreme Court on its own
motion is within the ambit of Supreme Court powers enshrined in Art. 139A of the Constitution.

(1.1) PUHR has locus standi before the apex court under Art. 32 of the Constitution for
infringement of Art. 21.

The jurisdiction of the Supreme Court under Art. 32 invoked by PUHR is an inherent power and
constitutes the Court as ‘protector and guarantor of Fundamental Rights’1 provided in Part III of
the Constitution. By virtue of this provision, the aggrieved person can directly approach the
Supreme Court for the enforcement of Fundamental Rights that has been violated.

The amendment permitting State to harvest transplantable organs is violative of Art. 21 of the
Constitution. Art. 21 provide, ‘No person shall be deprived of his life or personal liberty except
according to procedure established by law’2. The Court, in Francis Coralie3, held that right to life
includes right to live with human dignity. The amendment brought forth is in contravention to
the right to dignity enshrined in Art. 21.

Under Art. 32, the Supreme Court enjoys a broad discretion in the matter of framing the writs to
suit the exigencies.4 The Supreme Court has ruled that to exercise its jurisdiction under Art. 32, it
is not necessary that the affected person should personally approach the Court. The Court can
itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited
individual or body.5

PUHR, in this instance, has filed a PIL, which is, by authority of the judgment of the Court in
Bodhisattwa Gautam6, admissible before the Supreme Court on infringement of fundamental
rights.

1
Romesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124 : 1950 S.C.R. 594
2
INDIA CONST. art 21
3
Francis Coralie v. Union Territory of Delhi, A.I.R. 1981 S.C. 746 at 753 : (1981) 1 S.C.C. 608
4
Chiranjit Lal v. Union of India, A.I.R. 1951 S.C. 41
5
Bodhisattwa Gautam v. Subbra Chakraborthy, A.I.R. 1996 S.C. 722 : (1996) 1 S.C.C. 490 ; Chairman, Railway
Board v. Chandrima Das, A.I.R. 2000 S.C. 988: (2000)2 S.C.C. 465
6
Id.

MEMORANDUM FOR PETITIONERS

 XIV

(1.2) The Supreme Court has power to transfer the cases pending before High Courts to
itself by virtue of Art. 139A of the Constitution.

The miscellaneous provisions of the Supreme Court provide for the transfer of cases from one or
more High Courts to itself. Art. 139A7 guarantees this provision through its first clause that
reads,

‘Where cases involving the same or substantially the same questions of law are pending before
the Supreme Court and one or more High Courts, or before two or more High Courts and the
Supreme Court is satisfied on its own motion or on an application made by the Attorney-General
of India or by a party to any such case that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High Court
or the High Courts and dispose of all the case itself:

Provided that the Supreme Court may after determining the said questions of law return any
case so withdrawn together with a copy of its judgment on such questions to the High Court from
which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to
dispose of the case in conformity with such judgment.’8

In the litigation filed by NEETHI9 seeking a direction for the proper implementation of the
Transplantation of Human Organs Act, 1994, there arises the question of whether the law is
inadequate in preventing commercial transactions in human organs.

In the writ petition filed by Dr. Vasundara Das10, brain stem death certification by private
hospitals is being questioned. This gives rise to doubts about the finality of the procedure to
certify brain stem death and creates dissension regarding the ability to falsify the results. The
court needs to address this uncertain procedure established by law.

In the writ petition filed by Gautham11, his Right to Health is being violated and his Right to Life
is being endangered by the prohibition of commercial transaction by the state. Thus being a
provision that infringes and endangers Art. 21, the prohibition ought to be rescinded.

7
Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 21, for cl. (1) (w.e.f.1-8-1979)
8
Supra note 2, art 139A(1)
9
Moot Proposition, ¶ 7
10
Ibid, ¶ 8
11
Supra note 9, ¶ 9

MEMORANDUM FOR PETITIONERS

 XV

All these litigations being ‘substantial’ and of ‘general interest’12, the Supreme Court can through
its own motion transfer these cases to itself and adjudicate on the same.

Once the common issue of law is decided, the cases may be returned to the High Court under the
proviso to Art. 139A (1) to decide individual cases in the light of the law so laid down.13 The key
word of the decision being ‘may’, Art. 139A (1) in itself provides that the return of the individual
cases is at the discretion of the Supreme Court. Therefore the Court has the authority to entertain
the entirety of the cases by itself.

Thus, it is humbly submitted that the honorable Court has the authority to entertain the cases and
that the petitioners have locus standi thereby to present their contentions and be adjudicated. It is
also implored that the Court grants admittance and resolve the rest of the grievance of the
petitioners along with the questions of law.

2. A direction should be issued for the proper implementation of Transplantation of

Human Organs Act, 1994.

Transplantation of Human Organs Act, 1994 was enacted foreseeing the possible commercial
exploitation of people for organ harvesting.14 Being the primary and intrinsic reason for enacting
the statute, the prevention of commercial transaction should have been an inalienable function of
the government.

(2.1) The State has blatantly failed in its duty to prevent commercial transactions in human
organs.

The government has failed miserably in its duty to monitor the administration of Transplantation
of Human Organs Act; 1994.The prevention of commercial transactions in human organs is
prohibited by the statute itself in sec 19 of the Act.

Sec 19 (a) of the Act provides, ‘makes or receives any payment for the supply of, or for an offer
to supply, any human organ’15as a cause for punishment under sec 19. ‘Initiates or negotiates any
arrangement involving the making of any payment for the supply of, or an offer to supply, any

12
L.K. Venkat v. Union of India, A.I.R. 2012 S.C. 2503 : 2012 Cr.L.J. 2522 : 2012 A.I.R.S.C.W. 2681 : 2012 (5)
S.C.A.L.E. 35
13
Gnaneshwar B. Pettukota v. Govt. of India, (2005) 12 S.C.C. 447
14
Supra note 9, at ¶ 3
15
Sec 19(a), Transplantation of Human Organs Act, 1994, No. 42, Acts of Parliament,1994 (India)

MEMORANDUM FOR PETITIONERS

 XVI

organ’16is another offense punishable by this Act. These offences are punishable under sec 19 of
the Act by imprisonment, for a term not less than 5 years and not exceeding 10 years, and fine,
not less than 20 lakhs and not exceeding 1 crore rupees.

In the facts relating to Amit, Amit’s wife was offered rupees 5 lakhs in return for donating a
kidney17. It is also given that ‘the stranger introduced her to another man who offered 5L for her
kidney’18. Both these aspects are punishable by law but neither provisions of law were invoked
and both Mrs. Amit and the stranger who negotiated the deal were not reprimanded.

Sec 9(4)(b) of the Transplantation of Human Organs Act, 1994 reads, ‘The State Government
and the Union territories shall constitute, by notification, one or more Authorisation Committee
consisting of such members as may be nominated by the State Government and the Union
Territories on such terms and conditions as may be specified in the notification for the purposes
of this section.’19 Sec 9(5) of the same provides, ‘On an application jointly made, in such form
and in such manner as maybe prescribed, by the donor and the recipient, the Authorisation
Committee shall, after holding an enquiry and after satisfying itself that the applicants have
complied with all the requirements of this act and tile rules made thereunder, grant to the
applicants approval for the removal and transplantation of the human organ.’20

Procedure to be followed on cases of not being ‘near relatives’ is also inscribed in the rules made
in pursuance of the Act.21 Rule 4A (4)22 obligates the Authorisation Committee to evaluate on
certain matters. Rule 4A (4) is as follows:

When the proposed donor and the recipient are not “near relatives’, as defined under clause (i) of
section 2 of the Act, the Authorisation Committee shall evaluate that,-

i. there is no commercial transaction between the recipient and the donor and that no
payment or money or money’s worth as referred to the Act, has been made to the donor
or promised to be made to the donor or any other person;
ii. the following shall specifically be assessed by the Authorisation Committee:-
16
Ibid, sec 19(d)
17
Supra note 9, at ¶ 6
18
Ibid.
19
Supra note 15, sec 9 (4)(b)
20
Id, sec 9(5)
21
Sec 4A(4), The Transplantation of Human Organs Rules, 1995
22
Ibid

MEMORANDUM FOR PETITIONERS

 XVII

a. an explanation of the link between them and the circumstances which led to the
offer being made;
b. reasons why the donor wished to donate;
c. documentary evidence of the link, e.g. proof that the have lived together, etc;
d. old photographs showing the donor and recipient together;
iii. that there is no middleman or tout involved;
iv. That financial status of the donor and the recipient is probed by asking them to give
appropriate evidence of their vocation and income for the previous three financial years.
Any gross disparity between the status of the two must be evaluated in the backdrop of
the objective of preventing commercial dealing;
v. that the donor is not a drug addict or known person with criminal record;
vi. that the next of the kin of the proposed unrelated donor is interviewed regarding
awareness about his or her intention to donate an organ, the authenticity of the link
between the donor and the recipient and the reasons for donation. Any strong views or
disagreement or objection such kin shall also be recorded and taken note of.23

There is clear violation of the first four conditions provided. If this had been followed, it would
have enabled the Committee to become aware of the commercial nature of the donation. ‘If the
Authorisation Committee is satisfied that the applicants have not complied with the requirements
of this Act, it shall, in writing, reject the application for approval’.24 If Mrs. Amit and the
recipient had approached the Authorisation Committee, the Committee was obligated to reject
their application due to its commercial nature.

Sec 13(2)25 mandates the State to create an Appropriate Authority. ‘The State Government shall
appoint, by notification, one or more officers as Appropriate Authorities for the purposes of this
Act’26. The functions of the authority under sec 13(3) necessitate the authority ‘to suspend or
cancel registration under sub-section (2) of section 16’27 which provides,

23
Id
24
Ibid, sec 9(6)
25
Supra note 15, sec 13 (2)
26
Id.
27
Ibid, sec 13(3)

MEMORANDUM FOR PETITIONERS

 XVIII

‘If, after giving a reasonable opportunity of being heard to any [hospital or tissue bank, as the
case may be,]28 the Appropriate Authority is satisfied that there has been a breach of any
provisions of this Act or the rules made thereunder, it may, without prejudice to any criminal
action that it may take against such [hospital or Tissue Bank, as the case may be,]29 suspend its
registration for such period as it may think fit or cancel its registration.30

Consequently, even if Amit’s wife initiated the donation for money without approval from the
Authorisation Committee, the hospital fixed the date of the surgeries.31 This is violative of the
provisions of the Act and therefore the Appropriate Authority is liable to suspend or cancel the
registration of the hospital. The lack of action against the hospital by the authority is in itself
proof of negligence in fulfilling its duties.

Therefore, even though the approval of permission by the Authorisation Committee is

ambiguous, there is clear disregard of governmental obligations and the Act is thereby in urgent
need of proper implementation.

3. An order should be issued probing into the certification of brain stem deaths by private
hospitals.

Human organs are very expensive and are therefore a great incentive to trade illegally. A private
hospital is always motivated to maximize its profit and the cost of organs in black market
encourages them to resort to illegal means. In Australia alone, about 12,000 organs were sold on
the black market in 2018 of which 564 hearts and 2,615 livers were sold upto $394,000 each.32
The facts provided are also a dead giveaway as to the expensiveness of organs in the black
market. Amit’s wife was offered 5 lakh rupees for donating her kidney.33 Gautham was offered a
kidney in return for 30 lakh rupees.34 These, by itself, show how much money people are willing
to pay for procurement of such organs.

(3.1) Private sector hospitals stand to gain a lot from illegal certification of brain stem
deaths.

28
Subs. By s.14, ibid., for “hospital”(w.e.f.10-1-2014)
29
Ibid.
30
Supra note 15, sec 16(2)
31
Supra note 9, ¶ 6
32
Parliamentary Report, Parliament of Australia, Dec 3, 2018
33
Supra note 9, ¶ 6
34
Id, ¶ 8

MEMORANDUM FOR PETITIONERS

 XIX

In India, private hospitals charge anything between Rs 10 lakh and Rs 30 lakh for a heart
transplant, while for a kidney transplant the cost varies from Rs 5 lakh to Rs 20 lakh. In case of
liver, the price ranges from Rs 15 lakh and Rs 35 lakh.35 Thus, it is explicit that private hospitals
earn a lot from each surgery they undertake and they tend to procure these organs malefidely due
to lack of availability in par with demand.

(3.2) The tests for certification of brain stem deaths are indecisive and manipulable and
therefore unreliable.

The tests for determining brain stem death are under criticism. The government has set
procedures to be followed in the certification of such deaths but its finality and manipulability is
debatable. In the guidelines issued by the World Health Organisation,36 Tests of Neurological
Functions analyses various testing methods. Regarding Ancillary and Supplemental Testing it is
concluded, ‘In some jurisdictions, brain death requires the use of a supplemental or confirmatory
test. The most commonly recommended supplemental tests are EEG, 4 vessel cerebral
angiography radionuclide testing. Newer tests- inconsistently recommended- include CT
angiography CT perfusion, MR angiography and transcranial Doppler. There is insufficient
evidence to determine if newer ancillary tests accurately confirm the cessation of function of the
entire brain.’37 Concerning Apnea test it is provided, ‘Due to rhetorical concerns about the effect
of hypercarbia on cerebral blood flow in potential brain death, many guidelines recommend
performance of the apnea test after all other clinical testing has been completed.38

In Dr. S Ganapathy v. State of Kerala39, the Kerala High Court accepted the above mentioned
parts of the UN Guideline and held, “one thing we could understand was that the guidelines of
the WHO point out that apnea test would be the last test after the other tests are performed which
would include EEG. Therefore, the recommendation is not to exclude EEG.” The Court accepted
that “insistence is upon apnea test, which is not properly done and by concealing the actual state

35
Preetu Nair, Organ is free, transplant cost is problem, TOI, Sep 5, 2016
36
International Guidelines for the Determination of Death- Phase I, May 30-31, 2012 Montreal
37
Wijdicks EF, Varelas PN, Gronseth GS, Greer DM. Evidence based guideline update: determining brain death in
adults: report of the Quality Standards Subcommittee of the American Academy of Neurology. Neurology 2010;
74:1911-8.
38
The Anzics Statement on Death and Organ Donation.2008. (Accessed February, 2012)
39
2017 (4) KLT 579

MEMORANDUM FOR PETITIONERS

 XX

of affairs to the near relatives”40 The Court also observed that “patients and their wards are
desperate. They can be easily misled into believing things which may not be correct.”41

Thus, it has been judicially agreed to that the procedures that confirm brain stem deaths are
manipulable and is therefore susceptible to the will of the money hungry private sector.
Therefore, to ensure that the wards of the patients are not being manipulated and to ensure the
safety of the living patients who are being selfishly deprived of their lives by the private sector, a
probe into the certification of brain stem deaths is being sought for by the counsel for the
petitioner.

4. A direction should be issued to the State to protect Gautham’s right to life.

The article 25 of Universal Declaration of Human Rights states that ‘everyone has a right to a
standard of living adequate for the health and well being of himself and of his family including
food, clothing, housing, and medical care and necessary social services and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.’42

The act of the State is in direct contravention to that of its obligation under Art. 21 as the State is
essentially endangering the life of Gautham. Gautham was diagnosed with kidney failure and
was advised for immediate kidney transplantation.43 Not only would it take 2 years for him to
receive a kidney through the government list but also having prohibited commercial transactions,
Gautham is deprived of the option to secure a kidney from a third party by giving monetary
returns.

(4.1) The prohibition of commercial transactions in human organs is violative of Art.21 of

the Constitution.

In Indian law, Art. 47 provides the ‘duty of the State to raise the level of nutrition and standard
of living and to improve public health’44as a Directive Principle of State Policy. Right to life and
personal liberty is a fundamental right enshrined in Art. 21 and reads, ‘No person shall be

40
Ibid
41
Ibid
42
United Declaration of Human Rights, art 25
43
Supra note 9, ¶ 8
44
Supra note 2, art 47

MEMORANDUM FOR PETITIONERS

 XXI

deprived of his life or personal liberty except according to procedure established by law.’45The
apex court has ruled in Gian Kaur46 that Art. 21 is a provision guaranteeing protection of life and
personal liberty.

In Chairman, Railway Board v. Chandrima Das47, it was held that it is the obligation of the State
to protect the lives of persons regardless of whether they are citizens or not. “Art. 21 impose an
obligation on the State to safeguard the right to life of every person. Preservation of life is thus of
paramount importance”.48

Art. 21 has given rise to many rights by reading along the lines of Directive Principles of State
Policy. ‘Art. 21 is to be read not only with directive principles but also along fundamental
duties’49The Supreme Court held Art. 21 to be in conformity with Art.47 and expanded the
interpretation as:

“…to live with human dignity, free from exploitation. It includes protection of health and
strength of workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and human conditions of work and maternity
relief. These are minimum conditions which must exist in order to enable a person to live with
human dignity. No government can take any action to deprive a person of the enjoyment of these
basic rights”.50

Therefore, Art. 21 is a multi-dimensional Fundamental Right and includes protection of health.

In Vincent v. Union of India, the Court held,

“….maintenance and improvement of public health has to rank high as these are indispensible to
the very physical existence of the community and the betterment of these depends on the
building of the society of which the constitution makers envisaged. Attending to public health, in
our opinion, therefore, is of the highest priority- perhaps the one at the top”.51

45
Ibid. art 21
46
Gian Kaur v. State of Punjab, A.I.R. 1996 S.C. 946 at 652 : (1996) 2 S.C.C. 648
47
A.I.R. 2000 S.C. 988 : (2000) 2 S.C.C. 465
48
Paschim Benga Khet Mazdoor Sanity v. State of West Bengal, A.I.R. 1996 S.C. 2426 : (1995) 6 S.C.C. 213
49
Javed v. State of Haryana, (2003) 8 S.C.C. 369 : A.I.R. 2003 S.C. 3057
50
Bandhua Mukti Morcha v. Union of India, A.I.R.1997 S.C. 2218 : (1997) 10 S.C.C. 549
51
A.I.R. 1987 S.C. 990 : (1987) 2 S.C.C. 165

MEMORANDUM FOR PETITIONERS

 XXII

In this instance, Gautham was in advised for immediate kidney transplantation. He registered in
the government list for recipients which take atleast 2 years before getting a matching organ.52
Gautham had another option, that is, to secure a kidney from a person who was willing to
provide a kidney on receiving INR 30 lakhs. The government regulation of prohibition of
commercial transactions in human organs deprived him of his best choice to life a productive
life.

According to the NDTV-Fortis More to Give Campaign infographics53 shows the following:

 Approx. 5 lakh people die due to non-availability of organs every year.

 While 1 lakh people die of liver diseases, only 1,000 people get a liver transplant
 Only 15,000 people get a kidney transplant in contrast to the 2,20,000 awaiting kidney
transplantation.

This statistics clearly demonstrates the expectancy of transplantation for Gautham. In 2015, in a
study published by Lancet Global Health, it is expected that 1,36,000 Indian adults died
prematurely as a result of renal failure.54 This study clearly depicts the microscopic chance of
Gautham surviving long enough to receive the transplantation. Here, a person willing to fight for
his life and having the money to spend for it is being deprived of an opportunity by the
government.

It is the exploitation that is being put forward as the reason for the prohibition of commercial
transactions in human organs. The government should permit a willing person to donate for
monetary returns and prevent the exploitation by structuring rules that ensures free consent of the
donor. The donor must be desperately in need of money for them to sell their organs and the
recipient is in urgent need of the replacement. Both the donor and recipient stands to benefit
from the deal if the government can just ensure the voluntariness of the transaction.

The social aspect of the prohibition is to satisfy the repugnancy of people who dislike seeing the
organs as objects sold for money. The cost of this is the lives of the people who are able to afford
the transplantation but denied access by law.

52
Supra note 45
53
Tania Goklany, NDTV-Fortis More to Give Campaign, August 22, 2017
54
Shailvee Sharda, Deaths due to renal failure, TOI, Dec 14, 2016

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 XXIII

(4.2) Gautham’s right to livelihood is being affected by the State’s inability to facilitate
organ transplantation.

The Supreme Court has, over the years, come to hold that ‘right to life’55 guaranteed by Art. 21
includes the ‘right to livelihood’. The Court has, in Olga Tellis56, concluded that,

“….. The question which we have to consider is whether the right to life includes right to
livelihood. We see only one answer to that question, namely, that it does. The sweep of the right
to life conferred by Art. 21 is wide and far reaching. It does not merely mean that life cannot be
extinguished or taken away as, for example, by the imposition and execution of the death
sentence, except according to procedure established by law. That is but one aspect of the right to
life an equally important facet of that right is the right to livelihood because no person can live
without the means of living, that is, the means of livelihood.”57

‘If the right to livelihood is not treated as a part and parcel of the constitutional right to life, the
easiest way of depriving a person of his right to life would be to deprive him of his means to
livelihood.’58 The Court, regarding this point, observed,

“The State may not by affirmative actions, be compellable to provide adequate means of
livelihood or work to the citizens. But, any person who is deprived of his right to livelihood
except according to just and fair procedure established by law can challenge the deprivation as
offending the right to life conferred by article 21.”59

In Gautham’s case, he suffers from kidney failure and being a playback singer his career was
jeopardized by the State’s inability to secure a kidney for him.

Chronic renal failure (CRF) is a pathophysiological process with multiple etiologies, resulting in
the inexorable attrition of nephron number and function [3]. It is an irreversible medical
condition that impairs the kidney’s ability to function. Kidney failure is the same as chronic renal
failure.

55
Supra note 42
56
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180 : (1985) 3 S.C.C. 545
57
Ibid at 193
58
D K Yadav v. J.M.A. Industries, (1993) 3 S.C.C. 259 : Dr. Haniraj L. Chulani v. Bar Council of Maharashtra and
Goa, (1996) 3 S.C.C. 345
59
Supra note 53 at 194

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 XXIV

The effect of kidney failure on voice can be clarified by reference to a study published in the
Egyptian Journal of Otolaryngology of which the result is as follows:
‘In acoustic analysis, there was a significant increase in pitch in male patients with CRF and an
increase in shimmer with borderline significance in the total group with CRF. The total group as
well as the female subgroup with CRF showed a significant increase in noise-to-harmonic ratio.
With respect to the aerodynamic analysis, the total group as well as the male and female
subgroups with CRF showed a significant decrease in the vital capacity. There was also a
significant decrease in the maximum phonation time in the total and female subgroup with
CRF.’60

The conclusion for the same was as follows:

‘Participants with CRF exhibit clinical evidence of voice disorders both acoustically and
aerodynamically. Hence, the present study sheds light on the interplay of different body systems
and laryngeal muscles.’61

This study shows the effect of the kidney failure on the voice of a person. Gautham being a
playback singer is dependent on his voice to earn a living. His voice is the thing that propelled
him to being a celebrity deprived of which he will not be able to sing properly. Therefore, the
prohibition of commercial transaction is restricting Gautham’s right to livelihood as well.

Gautham is not being unfair by asking the government to avail him a kidney from the altruistic
donors who donate to the State. He does not want those who registered before him to be in
waiting while he receives a kidney. He is just a man who wants to live and for which is willing to
pay his hard earned money and secure a kidney from a third party who is not a donor to the State.
Thereby, Gautham is not affecting the chances of those waiting for organs in the government list
but is securing a chance for himself. If the government is worried about exploitation, they should
just certify the free consent instead of just prohibiting commercial transactions as a whole.

5. The amendment permitting State to harvest transplantable organs from brain stem dead
persons is constitutionally invalid.

60
Eman S Hassan, Effect of chronic renal failure on voice: an acoustic and aerodynamic analysis, The Egyptian
Journal of Otolaryngology, 30(1): 53-57 (2014)
61
Ibid at p. 56

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 XXV

The amendment of the Transplantation of Human Organs Act, 1994 altered the Act by laying
down the procedure to be followed on certification of brain stem deaths. It also added another
provision that the body of brain stem dead persons can be used by the State to harvest the
transplantable organs in the most effective way.62

(5.1) Art. 21 is applicable to the body of brain stem dead persons in a limited sense.

In Indian law, while the definition of ‘death’ in Indian Penal Code63 as well as the definition in
Registration of Births and Deaths Act64 remains ambiguous as to inclusion of brain stem death as
a criterion for ascertaining death of a person, the definition of deceased person in sec 2(e) of the
Transplantation of Human Organs Act, 1994 provides a vivid picture. Sec 2(e) gives:

 “deceased person” means a person in whom permanent disappearance of all evidence of life
occurs, by reason of brain-stem death or in a cardio-pulmonary sense, at any time after live birth
has taken place”65

This provision expressly provides brain stem death as a norm for certifying death. Since there is
ambiguity relating to definition of ‘death’ in Indian Penal Code, 1860 and the Transplantation of
Human Organs Act, 1994, i.e., ‘a conflict between a general law and a special law, Generalia
Specialibus Non Derogant comes into effect’66 and thereby, the special law prevails. The
definition of deceased person pertains resulting in brain stem dead persons being considered a
dead person.

Regarding the rights of dead bodies, the Supreme Court held in Pt. Parmanand Katara, Advocate
v. Union of India67, the Supreme Court held in a matter relating to method of execution of death
sentence of hanging under Punjab Jail Manual as inhuman and violative of Art.21 of the
Constitution of India as follows: - "We agree with the petitioner that right to dignity and fair
treatment under Art.21 of the Constitution of India is not only available to a living man but
also to his body after his death."68

62
Supra note 9, ¶ 10
63
Sec 46, Indian Penal Code, 1860
64
Sec 2(b), Registration of Births and Deaths Act, 1969
65
Sec 2(e), Transplantation of Human Organs Act, 1994
66
Greenfields v. The Queen, 1958 S.C.R. 216
67
(1995) 3 S.C.C. 248
68
Id

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 XXVI

Likewise, in Mujeeb Bhai v. State of U.P.69, the Allahabad High Court observed that the Supreme
Court has interpreted Article 21 of the Constitution of India to include a wide variety of rights.
“The law has not so far defined a person to include a dead person. It, however, has some rights,
which cannot be detached from it, even if the body is denuded of the life, which together forms a
human being. 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. An unclaimed dead body
has to be claimed by the State both for the purposes of investigation of the crime, if it was
committed on the human being, who did not die naturally for scientific investigation or for
research and medical education… 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.”70

These cases highlight that the word ‘person’ in Article 21 includes a dead person in a limited
sense. This recognition of the legal personality of a dead person is also essential to protect the
interests of the society as a whole.

(5.2) The amendment is violative of Art. 21 of the Constitution.

In Munn v. Illinois 71,  J. Field spoke of the right to live as follows, “by the term ‘life’ as here
used, something more is meant than sheer animal existence.”

In Maneka Gandhi v. Union of India72, the Supreme Court gave a new dimension to Art. 21 and
held that the right to live is not merely a physical right but includes within its ambit the right to
live with human dignity.

Supporting this view, Justice Bhagwati, in Francis Coralie v. U.T. of Delhi73 observed, “We
think that right to life includes the right to live with human dignity and all that grows along with

69
Civil Misc. Writ Petition No.38985 of 2004, High Court of Judicature at Allahabad
70
Ibid
71
94 U.S. 113
72
A.I.R. 1978 S.C.597 : (1978) 1 S.C.C. 248
73
Francis Coralie v. U.T. of Delhi, A.I.R.1981 S.C. 746, 753: (1981) 1 S.C.C. 608

MEMORANDUM FOR PETITIONERS

 XXVII

it namely, the bare necessities of life such as the adequate nutrition, clothing and shelter over the
head and facilities for reading, writing and expressing oneself in diverse forms, freely moving
about and mixing and mingling with fellow human beings and must include the right to basic
necessities the basic necessities of life and also the right to carry on functions and activities as
constitute the bare minimum expression of human self.”

In Bandhua Mukti Morcha74, Justice Bhagwati reiterated his view by observing;

“It is the fundamental right of everyone in this country… to live with human dignity free from
exploitation. This right to live with human dignity enshrined in Article 21 derives its life breath
from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the tender age of children against abuse,
opportunities and facilities for children to develop in a healthy manner and in conditions of
freedom and dignity, educational facilities, just and humane conditions of work and maternity
relief.

These are the minimum requirements which must exist in order to enable a person to live with
human dignity and no State neither the Central Government nor any State Government has the
right to take any action which will deprive a person of the enjoyment of these basic essentials.”75

Thus, over the decades the Supreme Court concurred that right to dignity is indeed enshrined in
Art. 21.

In P. Rathinam v. Union of India76, the Supreme Court defined ‘life’ as follows:

“The right to live with human dignity and the same does not connote continued drudgery. It takes
within its fold some of the finer graces of the civilization which makes life worth living and that
the expanded concept of life would mean the tradition, culture and heritage of the person
concerned.”

74
Bandhua Mukti Morcha v. Union of India, A.I.R. 1984 S.C. 802, (1984) 3 S.C.C. 161
75
Ibid
76
(1994) 3 S.C.C. 394 : A.I.R. 1994 S.C. 1844

MEMORANDUM FOR PETITIONERS

 XXVIII

The same was reitered in CERC v. Union of India77. These judgments inducted a qualitative
aspect into Art. 21. ‘The right to live with human dignity encompassed some finer graces that
make life worth living’ is inclusive and therefore religious beliefs are includable within the
purview of Art. 21. In Ananisthan, this amendment hurt the religious sentiments of various
sections of the society78.

The decision of the U.S. Court in Munn v. Illinois79 , ‘inhibition against the deprivation of life
extends to all those limbs and faculties by which life is enjoyed’ was reaffirmed in Olga Tellis80.
This provides for the protection against mutilation of the body within the confines of Art. 21.

The verdict in Mujeeb Bhai81 pronounces, “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.”82

Here, the amendment permitting the State to harvest organs from a dead body is the mutilation of
a body. While Art. 21 is applicable to persons, it has already been established by the counsel that
Art. 21 are applicable in a limited sense to dead bodies through the verdict in Parmanand
Katara.83

As regards to Art. 21, it is for the State to justify that the impugned law by showing that the
restriction is reasonable or that the procedure is not arbitrary but is just, fair and reasonable84. In
Deena v. Union of India85, the Supreme Court held, “the burden is never on the petitioner to
prove that procedure prescribed by law which deprives him of his life or personal liberty is
unjust, unfair or unreasonable.”

Therefore, the amendment permitting the State to harvest transplantable organs infringes Art. 21
of the Constitution and is, thereby, unconstitutional.
77
A.I.R. 1995 S.C. 922 : (1995) 3 S.C.C. 42
78
Supra note 9, at ¶ 11
79
Supra note 71
80
Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180 : (1985) 3 S.C.C. 545
81
Supra note 69
82
Ibid
83
Supra note 67
84
Bachan Singh v. State of Punjab, A.I.R. 1980 S.C. 898 : (1980) 2 S.C.C. 684
85
A.I.R. 1983 S.C. 1155 : (1983) 4 S.C.C. 645

MEMORANDUM FOR PETITIONERS

 XXIX

PRAYER

MEMORANDUM FOR PETITIONERS

 XXX

In the lights of issues raised, arguments advanced and authorities cited; it is most humbly
prayed that the court may please adjudge and declare that:

1. The public interest litigation filed by PUHR and the cases transferred from High Court of
Nyayasthan are maintainable before the Supreme Court of Ananisthan.
2. A direction should be issued for the proper implementation of Transplantation of Human
Organs Act, 1994.
3. An order should be issued probing into the certification of brain stem deaths by private
hospitals.
4. A direction should be issued to the State to protect Gautham’s right to life.
5. The amendment permitting State to harvest transplantable organs from brain stem dead
persons is constitutionally invalid.

And the court may pass any other order that deems fit in the interest of justice, good faith and
equity.

SD/-

(Counsel for the petitioners)

MEMORANDUM FOR PETITIONERS