Team Code: - B01

DR. RAJENDRA PRASAD MEMORIAL NATIONAL MOOT COURT COMPETITION 2021

BEFORE THE HON’BLE SUPREME COURT OF INDICA

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDICA

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDICA

Mrs. Talisa Stark……………………………………………… PETITIONER

v.
Mr. Rob Stark …….....................................................................RESPONDENT

----------------------------------------------------CLUBBED WITH--------------------------------------------------------

CIVIL APPEAL UNDER ARTICLE 133 OF THE CONSTITUTION OF INDICA

Mrs. Talisa Stark ……………………………………………...PETITIONER

v.
Dr. Samuel Tarly & Citadel Hospital………………………......RESPONDENT

------------------------------------------------------CLUBBED WITH------------------------------------------------------

CIVIL APPEAL UNDER SECTION 23 OF THE CONSUMER PROTECTION ACT, 1986

Mrs. Talisa Stark …………………………………………………PETITIONER

v.
Targaryen Charitable Blood Bank & Dr. Tyrion Lannister ………. RESPONDENT

------------------------------------------------------CLUBBED WITH------------------------------------------------------

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDICA

Mrs. Talisa Stark ………………………………………………….………PETITIONER

v.
State of Indica ……………………………………………………………. RESPONDENT

MEMORANDUM ON BEHALF OF PETITIONER

DATE OF SUBMISSION: - 11 - 06 - 2021
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TABLE OF CONTENT

List of abbreviations.................................................02

Index of authorities..................................................04

Statement of jurisdiction.........................................06

Statement of facts....................................................07

Statement of issues..................................................10

Summary of arguments............................................11

Arguments advanced................................................13

Prayer......................................................................23

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List of Abbreviation

Wes. Westeros

AIR All India Report

Art. Article

SC Supreme Court

SCR Supreme Court Reports

SCC Supreme Court Cases

Sec. Section

i.e., that is

& And

Hon’ble Honorable
UOI Union of India
Cri. Criminal
IPC The Indian Penal Code,1860
CPC The Code of Civil Procedure,1908
Cr.P.C The Code of Criminal Procedure,1973
v. versus
Constitution The Constitution of India, 1949
Ors. Others
Retd. Retired
HIV AIDS The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome
Act, 2017 (Prevention and Control) Act, 2017

Anr. Another
Assn. Association
Exec. Execution
J&K Jammu and Kashmir
W. B. West Bengal

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DMD Duchenne Muscular Dystrophy

AIDS Acquired Immune Deficiency
Syndrome
HIV Human Immunodeficiency Viruses
AON Antisense Oligonucleotide
HIV/ AIDS Human Immunodeficiency Virus
infection and Acquired Immune
Deficiency Syndrome
GTT Glucose Tolerance Test Thyroid
ELISA Enzymes Linked Immunosorbent
Assay
NCDRC National Commission Dispute
Redressal Commission
SCDRC State Consumer Dispute Redressal
Commission
GDPR General Data Protection Regulation

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Index of Authorities
CONSTITUTION:
 The Constitution of India, 1949

STATUTES:
 The Limitations Act, 1963
 The Code of Civil Procedure,1908
 The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and
Control) Act, 2017
 The Indian Evidence Act, 1872
 The Consumer Protection Act, 2019
 The Drugs and Cosmetics Act, 1940
 The Hindu Marriage Act, 1955
 The Hindu Adoption and Maintenance Act, 1956,

PRECEDENT CASES:

 T.A. Kathiru Kunju v. Jacob Mathai & Anr. (2017) 5 SCC 755
 B. Madhuri Goud v. B. Damodar Reddy (2012) 12 SCC 693,
 Dinesh Kumar v. Chanderkala 2011(4) Latest Judicial Reports 852,
 Rafiq and Another V. Munshilal, AIR 1981 SC 1400
 Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. (1979) 3 SCR 694
 The Child and Family Agency v. A.A. & Anr., [2018] IEHC 112
 Anil Kumar Malhotra v. Ajay Pasricha, C.R.No. 6337 of 2011
 M. Chinnaiyan vs Sri Gokulam Hospital and Anr. on 25 September, 2006 CPJ 228 NC
 Harindra U. Singh v Dr. K. S. Sethna, CC/12/112,
 Sita Ram Saini s/o Kahnyalal v Life Care Blood Bank, CC/106/2016
 Samira Kohli v. Dr. Prabha Manchanda & Anr., (2008) CPJ 56 (SC)
 Dr. Ramcharan Thiagarajan Facs v. Medical Council of India, WRIT PETITION No.11207/2013
(GM-RES)
 All India Lawyers Union (Delhi Unit) v. Govt. of NCT of Delhi & Ors., 163 (2009) DLT 319 (DB)
 Paschim Bangal Khet Mazdoor Samity and Others, (1996) AIR SC 2426/ (1996) 4 SCC 37
 Consumer Education and Research Centre and Others v. Union of India and Others, (1995) 3 SCC 42
 Indian Medical Association v/s. V.P.Shantha (1995) 6 SCC

WEB REFERENCES:

https: //indiankanoon. org/

https://www.casemine.com/
https: //indiancaselaws. wordpress. com/
http: //www. legalservicesindia. com/
https://www.hiv.gov.in/

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BOOKS REFERRED
 Hindu Law by Paras Diwan
 Constitutional Law of India by Narendra Kumar
 The Constitution of India by P.M.Bakshi
 Civil Procedure by C.K. Takwani

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Statement of Jurisdiction
The Hon’ble Supreme Court of Indica has the jurisdiction in this matter under Article 136 and Article 32 of
the Constitution of India which reads as follows:
“136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made
by any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces” 1

“133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding
of a High Court in the territory of India if the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court
(2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1)
may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of
this Constitution has been wrongly decided
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides,
lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court”2

“23. Appeal. —Any person, aggrieved by an order made by the National Commission in exercise of its
powers conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such order to
the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme
Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was
sufficient cause for not filing it within that period: 1[Provided further that no appeal by a person who is
required to pay any amount in terms of an order of the National Commission shall be entertained by the
Supreme Court unless that person has deposited in the prescribed manner fifty per cent. of that amount or
rupees fifty thousand, whichever is less.”3

“32. Remedies for enforcement of rights conferred by this Part

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

1
The Constitution of India,
2
The Constitution of India,
3
The Consumer Protection Act, 1986
4
The Constitution of India,

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Statement of Facts
1. Mrs. Talisa Stark is a computer operator in an orphanage named Goodlife, with a salary of Rs 20,000 per
month. The orphanage is located in Highgarden, a western district of the State of Westeros. She is married
to Mr. Rob Stark for the past six years. Rob is an assistant teacher in a government school of the same
district. The relationship between the husband and wife haven’t been very harmonious. The rough patch
in their relationship began in the second year of their marriage, when Talisa had an abortion without the
consent of her husband. Things got so bitter at the time that Rob threatened to press cruelty charges against
his wife. However, things returned to normalcy after Talisa conceived again in January, 2018.
2. Both the husband and wife were excited about the pregnancy and took all the required care and precaution.
In April 2018, Talisa went to the Hospital for her routine tests which included GTT, Thyroid and ELISA
tests for HIV I and HIV II antibody, all of which were negative. After six months, on 23rd October 2018,
she was admitted to the Dr Tyrion Lannister’s Happy Mother Clinic for the delivery of the child. Due to
some complications, the attending physician decided to perform Caesarean surgery. Dr Lannister asked
Rob to fill up the standard consent form required for the surgery, which he instantly did. After an hour
into the operation, Talisa delivered a Baby Boy, Jon. After the delivery, she suffered from postpartum
haemorrhage, one of the leading causes of maternal mortality. Due to excessive blood loss, Talisa’s blood
pressure started to drop severely and the doctor had to take critical decisions in such pressing situation.
The doctor decided that blood transfusion is the only recourse available and accordingly asked Rob to
arrange for six units of blood. Rob went to a private blood bank at Bravos, 5 km away from the clinic,
named Targaryen Charitable Blood Bank. He purchased six units of blood and handed it over to Dr
Lannister along with a certificate which was given to him by the blood bank with respect to the blood’s
suitability for transfusion. Dr Lannister observed that a label from the blood bag was missing. Since time
was of the essence and he was in a hurry, he hastily enquired with Rob about the same, to which Rob
replied that he was not sure if while handling the blood bags, he rubbed off any label. The doctor nodded
and went ahead with the blood transfusion to save the life of his patient. After the transfusion, both, the
mother and the child, seemed fit and therefore, were discharged from the clinic.
3. Few weeks after the discharge, Talisa experienced frequent low-grade fevers and night sweats, loss of
appetite, inability to sleep and overwhelming fatigue. She consulted Dr Lannister since he has been her
attending physician throughout her pregnancy. Dr Lannister explained to her that these are the signs of
postpartum depression and that taking rest and meditating can solve her issues. After few days, in
November, 2018, Talisa developed boils on her skin and had urine and stool infection. She again consulted
Dr Lannister, who then prescribed certain medication after which her condition stabilized temporarily.
However, the symptoms resurfaced and this time she consulted another physician, Dr Samuel Tarly at the
Citadel Hospital. Dr Tarly asked Talisa about her family history and if she has had any operation which
required blood transfusion. After learning about the recent blood transfusion, Dr Tarly asked her to
undergo ELISA test, in which she tested HIV positive. Upon her diagnosis, Dr Tarly advised a similar test
for Jon. In Dr Tarly’s opinion, even though the transfusion took place after the delivery of the child,
continuous breast feeding could have infected the child as well. Jon too tested HIV positive.
4. The hospital informed her about the status and counselled her accordingly. Talisa asked Dr Tarly and
Citadel Hospital authorities not to tell anything to anyone, especially her husband. She said that she will
tell her husband about her disease when the time comes. Believing that Talisa will not tell her husband
about her HIV positive status at the earliest, they informed the husband, Rob about her HIV positive status,
after informing Talisa about their intention to do so. After Rob got to know that his wife is HIV positive,
he filed for a divorce under Section 13(1) (v) of Hindu Marriage Act, 1955.

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5. The Family Court of Highgarden granted the divorce and proceeded for hearing on the issue of
maintenance to Talisa. On the date fixed for the hearing on the issue of maintenance, neither Talisa nor
her advocate was present in the court, without any notice. The court passed an ex parte order against Talisa
denying any maintenance to her. After 3 months of passing of the order, Talisa filed an application in the
court through another advocate for setting aside the ex parte order. She claimed that she was unaware
about the court requirements and her advocate was negligent as neither he had asked her to be present in
the court nor had informed her about his absence. However, the family court dismissed the application on
the ground of inordinate delay. Against the order of the Family Court, Talisa filed a Special Leave Petition
in the Supreme Court of Indica.
6. At the same time, Talisa had filed a complaint before the ombudsman appointed under The Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017
(Annexure I) on the ground of violation of Section 9 of the Act by Dr Samuel Tarly and the Citadel
Hospital and claimed damages for the same. She had claimed that the hospital authorities should not have
informed her husband about her HIV positive status as she specifically asked them not to and that she was
eventually going to do so at a right time and place and in a proper manner. As he got the news from the
hospital authorities and not from her, a bad impression was created in the mind of her husband that she
was not going to tell him and that she wanted to infect him as well. This led to her divorce and a mental
injury was caused to her as well as her child in the form of abandonment. On the other hand, the hospital
authorities argued that they had informed the husband as they believed that she was not going to tell her
husband at the earliest and there was a substantial risk of infection to her husband. Also, the husband has
exercised his legal right in a lawful manner through lawful means. Therefore, it cannot be said that mental
injury or abandonment has been caused to Talisa. The ombudsman decided in favour of Talisa on the
ground that the communication of such sensitive information by a stranger had a disastrous impact over
her marital relationship which eventually led to her divorce. Therefore, the act of the hospital had a
negative impact over her mental well-being and the hospital is liable to pay a compensation of Rs 10 Lakhs
to her. The hospital went for appeal to the National Disease Tribunal. The tribunal overturned the decision
of the ombudsman and decided in favour of the hospital on the ground that exercise of legal right in a
lawful manner cannot be said to be causing mental agony to her. Now, Talisa has filed an appeal before
the Hon’ble Supreme Court of Indica (Civil Appeal No. 314/2021).
7. Talisa also filed a complaint against the blood bank, Targaryen Charitable Blood Bank, as well as the
attending physician, Dr Tyrion Lannister, before the State Consumer Dispute Redressal Commission
(SCDRC), Westeros. The complaint was filed against the blood bank for selling the HIV infected blood,
without proper labelling on the blood bag, to Rob for the blood transfusion of the complainant; and against
the doctor (i)For not testing the blood before carrying out the transfusion, in spite of noticing missing
labels from the blood bag, particularly when proper labelling on the blood bag is a requirement under the
Drugs & Cosmetics Rules, 1945, (ii) for not taking real and valid consent for the blood transfusion, as the
complainant wasn’t informed about the inherent risks involved. The complainant prayed for the
compensation of Rs. 18 Lakh for the medical treatment for herself and her son Jon.
8. Before the SCDRC, Westeros, the blood bank and the doctor both contended that it is highly unlikely that
the infection had been passed through breastfeeding. Therefore, it is not safe to rule out all the other
possibilities through which the complainant could have been infected and to assume that the blood
transfusion has resulted in the infection. The blood bank argued that improper sterilization of equipment
in an operation including caesarean, infected needles, scalpels, tattooing equipment, etc. can also transmit
HIV and most prominent route of the transmission is through unprotected intercourse with an infected
partner. Hence, he contended that paternity test should be done for this situation prior to admitting the
allegations made by the complainant. It was also averred that even if it is to be believed that the
complainant was transmitted HIV through the blood transfusion, the blood bank cannot be held liable for

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the same since it had taken all the reasonable precautions and there is always an inherent risk in blood
transfusion because a donor, who, despite having HIV virus in his blood, being in window period when
tested, the aforementioned test would give negative test report. The Doctor contended that in cases of
postpartum haemorrhage, blood transfusion is the only way to save the life of the patient. Also, the consent
form for the caesarean operation specifies that the operation may or may not require blood transfusion,
depending on the case at hand. Therefore, no additional consent was required apart from the general
consent, which was already signed by Rob, for the blood transfusion.
9. The SCDRC, Westeros held the blood bank liable for deficiency in service under the Consumer Protection
Act, 1986 since the blood purchased from the blood bank transmitted HIV to the complainant. As far as
the medical negligence by the doctor is concerned, since the concerned doctor had failed to obtain a valid
and real consent from the complainant and the blood transfusion to the complainant was an unauthorized
act amounting to a tortious act of assault and battery, there was a deficiency in service on his part as well.
The commission directed the Doctor to pay Rs. 18 Lakh towards the expenses claimed for the medical
treatment of the complainant and her son. An appeal against the order of SCDRC was filed under Section
19 of the Consumer Protection Act, 1986 before the National Commission Dispute Redressal Commission
(NCDRC). The same was dismissed by the NCDRC on merits. Against the order of NCDRC, the blood
bank and the Doctor filed an appeal before the Hon’ble Supreme Court of Indica under Section 23 of the
Consumer Protection Act, 1986 (Civil Appeal No. 329/2020).
10. While the proceedings were pending before NCDRC, Jon was diagnosed with a rare disease called
Duchenne Muscular Dystrophy (DMD), which affects the use of voluntary muscles in the body resulting
in difficulty in walking, running or climbing and even struggling to lift their head due to a weak neck. If
the disease is left untreated, the child is unlikely to survive. Given Jon’s history of HIV, the condition was
far more severe than the usual cases of DMD. The available therapy in the global market is called
Antisense Oligonucleotide (AON). An antisense therapy involving the drug ‘Exondys 51’, manufactured
and supplied by Sarepta Therapeutics, Capitalia, is available in Indica and approved by the Central Drug
Standard Control Organization. No Indican drug company has developed a competing drug for this disease
till date. It is expected that patients receiving this treatment have a high chance of surviving. The treatment,
however, is lifelong and expensive.
11. Given the existing condition of Jon’s household, arranging for such treatment was next to impossible.
Talisa availed the financial assistance for Jon’s treatment from Westeros SwasthKosh. Under the scheme,
Rs.6 Lakhs was released in favour of Jon. However, since the total expenditure of the treatment was around
Rs. 25 Lakh for a year, the Westeros Government stated that no further financial assistance for medical
treatment can now be extended to the child. Talisa also sought aid under Rashtriya Arogya Nidhi Scheme
from the Central Government. However, the Central Government did not extend the aid for more than Rs.
2 Lakh rupees stating the reasons of financial constraints and that the State Government should be
approached for further assistance. With no support from her husband and no other option left, Talisa, on
behalf of Jon, filed a writ petition under Article 32 of the Constitution of Indica, before the Hon’ble
Supreme Court stating that the Central Government and the Government of Westeros were obligated under
Article 21 of the Constitution and Directive Principles of State Policies to provide totally free treatment to
the petitioner and like patients. The Hon’ble Supreme Court admitted the said writ petition (WP No.
68/2020).
12. On the request of Talisa and considering the commonality of facts and circumstances, the bench has agreed
to club all the appeals and petitions filed by Talisa and hear them together. The Supreme Court has posted
the matters for final hearing in June, 2021.

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Statement of Issues
ISSUE I: - Whether the ex parte order of the Principal Judge, Family Court, Highgarden is liable to be set
aside on the ground of negligence of the advocate and innocence of the party?

ISSUE II: - Whether the decision of the National Disease Tribunal denying the liability of Doctor Samuel
Tarly and Citadel Hospital for the violation of section 9 of HIV AIDS Act, 2017, is liable to be set aside?

ISSUE III: - Whether NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and medical negligence liable to
be set aside?

ISSUE IV: - Whether the Central and State Government’s refusal to free treatment of a minor suffering from
a rare disease, where the parent of the child cannot afford the treatment is in violation of Article 21 of the
Constitution of Indica?

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Summary of Arguments
ISSUE I: - Whether the ex parte order of the Principal Judge, Family Court, Highgarden is liable to be
set aside on the ground of negligence of the advocate and innocence of the party?

It is humbly submitted before the Hon'ble Court that the decision of upholding the dismissal of the ex parte
order by the Family Court is an inaccurate decision by the High Court, as the fault of advocate should not be
the sole criteria for the ex-parte order as it is a sufficient cause for setting aside ex parte order.
It is also submitted that, question of greater good involved. There can be a gross misconduct as precedent
against public policy and it's not just for this case, there is a greater good involved for public policy. This case
will be a precedent for all the cases where the decision is based on solely on the technical and procedural
ground rather than on evidence. Also, due to lack of awareness a mere negligence of the Advocate can
jeopardise the justice for a citizen. It is further submitted that, the Petitioner will be greatly prejudiced and a
lot of injustice would be caused. The Petitioner is entitled to the Right to Maintenance under Hindu Marriage
Act, 1955, under Section 25.

ISSUE II: - Whether the decision of the National Disease Tribunal denying the liability of Doctor
Samuel Tarly and Citadel Hospital for the violation of section 9 of HIV AIDS Act, 2017, is liable to be
set aside?
This issue is humbly submitted before the supreme court that the decision of the National Disease Tribunal
denying the liability of Doctor Samuel Tarly and Citadel Hospital for the violation of section 9 of HIV AIDS
Act, 2017, is liable to be set aside. This is mainly because the section 9 (1)(d) of HIV AIDS Act, 2017, has
informed the HIV positive person of the intention to disclose the HIV positive status to such partner, provided
that disclosure under this section to the partner shall be made in person after counselling; provided further that
such healthcare provider shall not inform the partner of a woman where there is a reasonable apprehension
that such information may result in violence, abandonment or actions which may have a severe negative effect
on the physical or mental health or safety of such woman, her children or someone close to her. This very
basic law was disregarded by the hospital authority and as per subclause (2) in case of violation of this
provision, on disclosure of the HIV positive status of a HIV positive person, the healthcare provider will be
responsible to pay reasonable damages to such HIV positive person. Then there has been infringement of right
to privacy means ‘right to be let alone’ as guaranteed by Art. 21 (read along with the Directive Principles of
State Policy).
Thus, in view of these grounds, both the Doctor Samuel Tarly and Citadel Hospital is bound to pay damages
for the wrong they have committed.

ISSUE III: - Whether NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and medical negligence
liable to be set aside?

It is humbly submitted before the Supreme Court that NCDRC order upholding the decision of the SCDRC of
holding the Targaryen Charitable Blood Bank and Tyrion Lannister liable for deficiency in
service and medical negligence is not liable to be set aside for two reasons, firstly, Negligence on the part of
blood bank and the Doctor, the petitioner Got infected due to the negligence of the Doctor as well as the Blood
Bank. The label was missing at the time the blood bank sold that blood, a pre-blood transfusion check should
have been conducted which wasn't done either by the blood bank or by the Doctor. Also, there is no question
of paternity test. As HIV test was being done after the child conceived. Secondly, no real and valid consent

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was taken for the blood transfusion, as the complainant wasn’t informed about the inherent risks involved.
Informed consent should be obtained sometime prior to the procedure so that the patient does not feel
pressurised or rushed to sign. On the day of surgery, the patient may be under extreme mental stress or under
influence of pre-medicant drugs which may hamper his decision-making ability.

ISSUE IV: - Whether the Central and State Government’s refusal to free treatment of a minor suffering
from a rare disease, where the parent of the child cannot afford the treatment is in violation of Article
21 of the Constitution of Indica?

It is humbly submitted before the Supreme Court that refusal to free treatment of a minor suffering from a rare
disease, where the parent of the child cannot afford the treatment is in violation of Article 21 of the
Constitution of Indica.
Jon was diagnosed with a rare disease called Duchenne Muscular Dystrophy (DMD), which affects the use of
voluntary muscles in the body resulting in difficulty in walking, running or climbing and even struggling to
lift their head due to a weak neck. If the disease is left untreated, the child is unlikely to survive. Given Jon’s
history of HIV, the condition was far more severe than the usual cases of DMD. Given the existing condition
of Jon’s household, arranging for such treatment is next to impossible for the Petitioner.
The Government of Indica are obligated under Article 21 of the Constitution of India to provide totally free
treatment to the petitioner and like patients. In the case of All India Lawyers Union (Delhi Unit) vs. Govt. of
NCT of Delhi & Ors.5, it has been held that health was implicit in Article 21 of the Constitution.
Thus, under this issue it is submitted that the Central and State Government’s refusal to free treatment of a
minor suffering from a rare disease, where the parent of the child cannot afford the treatment is in violation
of Article 21 of the Constitution of Indica.

5
163 (2009) DLT 319 (DB)

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Arguments Advanced
ISSUE I: - Whether the ex parte order of the Principal Judge, Family Court, Highgarden is liable to be
set aside on the ground of negligence of the advocate and innocence of the party?

It is humbly Submitted before the Hon'ble Supreme Court that the ex-parte order of the Principal Judge, Family
Court, Highgarden is liable to be set aside on the ground of negligence of the advocate and innocence of the
party. The ratio behind the said contention can be described in a three-fold manner; firstly, because the
decision by High Court is inaccurate, secondly, a question of greater good involved, thirdly, the petitioner has
been greatly prejudiced and injustice has been caused.

I.1. Inaccurate decision by the High Court by upholding the dismissal of the setting aside of ex parte
order of the Family Court.

It is humbly Submitted by the petitioner's side that; the decision of the High Court is inaccurate and should be
set aside. Section 5 of the Limitation Act 1963 prescribed period of limitation, in filing an application or an
appeal except under the provisions of Order 21 of Civil Procedure Code 1908 and gives power to the Court to
admit the appeal or application after the prescribed period. The only condition is that the applicant/appellant
satisfies the court that he had sufficient cause for not preferring the appeal or making the application within
such period.

In the present case the party had to suffer because of negligence on the part of the counsel. The party was
unaware about the court requirements and her advocate was negligent as neither he had asked her to be present
in the court nor had informed her about his absence.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi & Ors. 6 which is a case of negligence of the counsel
which misled a litigant into delayed pursuit of his remedy the default in delay was condoned.

It was held in Rafiq and Anr. v. Munshilal and Anr.7, that "After engaging a lawyer, the party may remain
confident that a lawyer will look after his interest. At the time of the hearing of appeal, the personal appearance
of the party is not required but is hardly useful. Therefore, the party having done everything in his/her power
to effectively participate in the proceedings can rest assured that he has neither to go to the court to inquire as
to what is happening in the Court with regard to his/her appeal nor is he/she to act as a watchdog of the
advocate that the latter appears in the matter when it is listed. It is no part of his/her job." So this explains that
When a party performs his part of contract towards the advocate, then he/she all the way is innocent of the
acts, the advocate has done, and should not be allowed to suffer for any such act of his counsel for the inaction,
deliberate omission or negligence of his agent which in the natural circumstances, the party would not have
done or apparently his valuable rights had been put to jeopardy and such negligence was detrimental to the
valuable rights of the party.

6
(1979) 3 SCR 694
7
AIR 1981 SC 1400

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In the case of Dinesh Kumar v. Chanderkala and Anr. 8 the court while scrutinizing the relationship between
the advocate and his client to suffer on account of the negligence and inaction on the part of the advocate,
observed that since the litigant himself was not in any way negligent as his advocate was duty bound to attend
in his absence and no motive can be attributed to the defendant-appellant that he was to he benefitted in any
manner by filing late application. Non-attendance of the party and Non-Appearance of the counsel on a
particular date could be treated as sufficient ground for setting aside the ex-parte decree,

It is a fairly well settled law that "sufficient cause" should be given liberal construction so as to advance
sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the
appellant. After referring to various judgments, in B. Madhuri Goud v. B. Damodar Reddy9, this Court held
as under: -
"The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic
enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No
hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but
over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so
that substantive rights of the parties are not defeated only on the ground of delay."

In the facts and circumstances of the present case, the negligence of the counsel should to be taken as
"sufficient cause" for condoning the delay in filing the first application. The impugned judgment of the High
Court cannot be sustained and is liable to be set aside.

I.2. Question of greater good involved.

It is humbly submitted by the petitioner's side, The current situation in the justice system gives way to a
loophole, on account of which the innocent litigant would have to suffer. There can be a gross misconduct as
precedent against public policy and it's not just for this case, there is a greater good involved for public policy.
This case will be a precedent for all the cases where the decision is based on solely on the technical and
procedural ground rather than on evidence.

There can be a situation where the court might disallow to condone the delay, in case of a mistake of law,
based on ‘wrong legal advice’. This can be done in consideration of the rights of the other party, which are
not to be taken lightly and circumstances peculiar to a certain case. In this scenario, in case the innocent litigant
files a complaint of professional misconduct against the lawyer, he might fail to succeed. This is because a
‘mistake of law’, even on account of ‘wrong legal advice’, has been adjudged as just mere negligence in many
cases.

Thus, in light of the judgement passed in T.A. Kathiru Kunju v. Jacob Mathai & Anr. 10, a negligent lawyer
could simply get away with his liability, jeopardising the rights of his client. This can be done by simply
pleading that the mistake of law committed by him does not amount to gross negligence, as the mistake
committed was bonafide in nature.

8
2011(4) Latest Judicial Reports 852,
9
(2012) 12 SCC 693
10
(2017) 5 SCC 755

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15 | P a g e

It is further submitted that, the people have the right to legal aid, due to lack of awareness of legal aid, many
common people have to suffer.

India is a country with mass population and of illiterate. Majority of people are not aware of the legal systems
prevailing in the country and also of their constitutional rights. Even though people are aware of it, they are
not in a situation to afford because of their economic and social backwardness. They are in a helpless situation
to engage the services of legal counsel, which has become the costly affairs.

Even if a small section of people can afford to bear the cost of counsel, due to lack of awareness a mere
negligence of the Advocate can jeopardise the justice for a citizen.

I.3. The petitioner has been greatly prejudiced and injustice has been caused.

The Petitioner is entitled to Maintenance, under Hindu Marriage Act, 1955, Section 25 – Applicant, either
wife or husband is entitled to receive from the spouse for his/her maintenance and support a gross sum or
monthly or periodical sum for a term not exceeding the applicant’s lifetime or until he/she remarries or remains
chaste.
Also, the child is entitled to Maintenance under Hindu Adoption and Maintenance Act, 1956, Section 20 – A
Hindu male or female is bound to maintain his or her legitimate/illegitimate minor children and aged/infirm
parents.

The petitioner relied on her Advocate due to which the ex parte order was passed. The fault of her legal counsel
can cause a serious impediment in her quality of life. The petitioner is suffering from HIV, a chronic disease
which lasts for the life time, additionally, her child too is suffering from HIV and has also been diagnosed
with a rare disease called Duchenne Muscular Dystrophy (DMD), which affects the use of voluntary muscles
in the body resulting in difficulty in walking, running or climbing and even struggling to lift their head due to
a weak neck. If the disease is left untreated, the child is unlikely to survive. Given Jon’s history of HIV, the
condition was far more severe than the usual cases of DMD. The available therapy in the global market is
called Antisense Oligonucleotide (AON). An antisense therapy involving the drug ‘Exondys 51’,
manufactured and supplied by Sarepta Therapeutics, Capitalia, is available in Indica and approved by the
Central Drug Standard Control Organization. No Indican drug company has developed a competing drug for
this disease till date. It is expected that patients receiving this treatment have a high chance of surviving. The
treatment, however, is lifelong and expensive. For all the contention stated above the ex parte order by the
Family Court which is also upheld by the High Court should be set aside.

ISSUE II: - Whether the decision of the National Disease Tribunal denying the liability of Doctor
Samuel Tarly and Citadel Hospital for the violation of section 9 of HIV AIDS Act, 2017, is liable to be
set aside?

The counsel humbly submits before the honourable court that the decision of the National Disease Tribunal
denying the liability of Doctor Samuel Tarly and Citadel Hospital for the violation of section 9 of HIV
AIDS Act, 2017, is liable to be set aside the reason behind the assertion can be understood by two reasons,
firstly, (I) Unjustified to breach the confidentiality, (II) breach of section 9 (1)(d) of HIV AIDS Act, 2017,

II.1) Unjustified to breach the confidentiality.

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It is humbly submitted before the Supreme Court that; Confidentiality is central to the trust between patients
and healthcare practitioners. If the therapeutic relationship is to be successful, patients must be confident that
intimate details about their health and personal relationships go no further than the consultation room.
The need for a confidential medical service is recognised as a public good. The duty to maintain patient
confidentiality is rooted in medical ethics, in common law and in law relating to contracts. The General Data
Protection Regulation (GDPR) also imposes obligations in terms of the lawful processing of personal data.

In the case of The Child and Family Agency v. A.A. & Anor11, the Court determined that the appropriate test
to apply to ascertain whether patient confidentiality should be breached is whether “on the balance of
probabilities, the failure to breach patient confidentiality creates a significant risk of death or very serious
harm to an innocent third party”.
The Court determined that the contracting of HIV, although a significant condition, is no longer a terminal
one, but rather a chronic and lifelong condition that can be managed. In addition, in the view of the Court, the
risk of contracting HIV through sexual intercourse is extremely low and can be further reduced through the
use of contraception, and as such, does not pose a ‘significant risk’ of harm. Accordingly, HIV infection is
not considered enough of a ‘very serious harm’ to justify a breach of patient confidentiality.

II.2. breach of section 9 (1)(d) of HIV AIDS Act, 2017,

It is further submitted before the Supreme Court that the decision of the National Disease Tribunal denying
the liability of doctor Samuel Tarly and Citadel Hospital is liable to set aside for the violation of section 9
(1)(d) of HIV AIDS Act, 2017, in which states Section 9 – Disclosure of HIV positive status to partner of HIV
positive person
1) A healthcare provider, who is a physician or a counsellor, may disclose the HIV positive status of a person
under his direct care to his or her partner, if such health care provider-
(a) Reasonably believes that the partner is at a significant risk of transmission of HIV from such person, and;
(b) Such HIV positive person has been counselled to inform such partner, and;
(c) Is satisfied that such HIV positive person will not inform such partner, and;
(d) has informed the HIV positive person of the intention to disclose the HIV positive status to such partner,
provided that disclosure under this section to the partner shall be made in person after counselling; provided
further that such healthcare provider shall not inform the partner of a woman where there is a reasonable
apprehension that such information may result in violence, abandonment or actions which may have a severe
negative effect on the physical or mental health or safety of such woman, her children or someone close to
her.
2) In case of the disclosure of the HIV positive status of a HIV positive person in violation of this provision,
the healthcare provider will be responsible to pay reasonable damages to such HIV positive person.12

In the instant case, the doctor has firstly violated the section 9 (1) (d) by not disclosing the fact in person, also,
the Petitioner asked Dr Tarly and Citadel Hospital authorities not to tell anything to anyone, especially her
husband. She said that she will tell her husband about her disease when the time comes.

The petitioner was eventually going to do so at a right time and place and in a proper manner. As the husband
got the news from the hospital authorities and not from her, a bad impression was created in the mind of her
husband that she was not going to tell him and that she wanted to infect him as well. This led to her divorce

11
[2018] IEHC 112
12
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control) Act, 2017

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and a mental injury was caused to her as well as her child in the form of abandonment. The divorce taken by
the former husband signifies the truth of the statement of the petitioner.

The Respondent, Doctor Samuel Tarly and Citadel Hospital was clearly informed by the petitioner that she
will disclose the information when the times comes by herself, she very well knew what the consequences can
be as the relationship between the husband and wife haven’t been very harmonious. The rough patch in their
relationship began in the second year of their marriage, when the petitioner had an abortion without the consent
of her husband. The Supreme Court in a significant case held that the husband has no right to compel his wife
not to terminate the pregnancy and that he had no right to sue his wife for compensation. 13
Further, things got so bitter at the time that her husband unnecessarily threatened to press false cruelty charges
against his wife. However, things returned to normalcy after Talisa conceived again in January, 2018. As the
petitioner knew the behaviour of her husband and hence asked the hospital not to tell her family specially her
husband, nonetheless, the Doctor violated section 9(1) (d) i.e., healthcare provider shall not inform the partner
of a woman where there is a reasonable apprehension that such information may result in violence,
abandonment or actions which may have a severe negative effect on the physical or mental health or safety of
such woman, her children or someone close to her. Which resulted into her divorce and a mental injury was
caused to her as well as her child in the form of abandonment.
For this particular reason Doctor Samuel Tarly and Citadel Hospital are responsible to pay the reasonable
damages of Rs 10 Lakhs to her in the violation of section 9 (2) In case of the disclosure of the HIV positive
status of a HIV positive person in violation of this provision, the healthcare provider will be responsible to
pay reasonable damages to such HIV positive person.
As long as people living with HIV face stigma and discrimination from those closest to them, from healthcare
professionals, and from the community as a whole, many will find it extremely difficult to disclose. To heap
additional judgment upon them for their difficulty with disclosing will only add to this stigma. The best way
to encourage disclosure is by engaging patients in care and educating them about reducing the risk of
transmission. Evidence shows most people diagnosed with HIV consequently change their sexual behaviour
and go on treatment that significantly reduces infection risk to others. If the doctor still believes there is a risk
to others, they should be addressing their patient's fears around disclosure and supporting them, in order for
the patient to overcome them.

And for all the above stated reasons it is submitted before the Hon'ble Supreme Court that decision of the
National Disease Tribunal denying the liability of Doctor Samuel Tarly and Citadel Hospital for the violation
of section 9 of HIV AIDS Act, 2017, is liable to be set aside.

ISSUE III: - Whether NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and medical negligence
liable to be set aside?

It is humbly submitted before the Supreme Court that NCDRC order upholding the decision of the SCDRC of
holding the Targaryen Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and
medical negligence is not liable to be set aside for the following reasons,

13
Anil Kumar Malhotra v. Ajay Pasricha, C.R.No. 6337 of 2011

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III.1. Blood purchased from the Blood Bank is under Consumer Protection act.

The Husband of the Petitioner can be said to be as Consumer under the definition of Section 2(1)(d)(i) & (ii)
of Consumer Protection Act, 1986, because he had purchased blood from the Blood Bank and hired services
of Blood Bank and paid consideration thereof. Service rendered by them is covered under Section 2(1)(o) of
Consumer Protection Act, 1986. In the case of Indian Medical Association v/s. V.P.Shantha 14, it has been
held by the Supreme Court that medical professional providing services fall under definition of services under
section 2(1)(o) of Consumer Protection Act, 1986. Blood is a drug as defined under Drug and Cosmetic Act
and therefore, it is also covered under definition of goods within the meaning of Section of 2(1)(d)(i) of
Consumer Protection Act, 1986.

III.2 Negligence on the part of blood bank and the Doctor.

The Petitioner would not have got HIV positive infection by blood transfusion. The blood bank and the Doctor
in his hospital negligently by violating statutory notification, transfused blood to her, which was infected with
HIV virus. Therefore, the petitioner categorically averred that she was administered HIV contaminated blood
and thus HIV virus was put in her body by the Respondent by their sheer negligence in discharge of their
duties towards the patient. It is also submitted that after a few months she became aware of her contracting
HIV positive and she and her child contracted HIV virus because of careless administration of contaminated
blood by Respondents.
The missing label from the blood bag is a huge misconduct on the part of the blood bank as it is mandatory
that all the information must be provided before the selling and purchase of blood, In M. Chinnaiyan vs Sri
Gokulam Hospital and Anr.15 , it is stated that consent is necessary before blood transfusion and here the same
was not done either. As per Harindra U. Singh v Dr. K. S. Sethna 16, the blood bank must ensure appropriate
labelling of blood bags and one numbered segment should remain attached with the blood bag being issued.
By all means a blood bag must contain a label thereby the blood bank in the present case of the Petitioner
stands responsible for deficiency in services.

It is also submitted that a pre-blood transfusion check should have been conducted which wasn't done either
by the blood bank or by the Doctor. The blood bank is liable for selling the HIV infected blood, without proper
labelling on the blood bag and the Doctor for not testing the blood before carrying out the transfusion, in spite
of noticing missing labels from the blood bag, particularly when proper labelling on the blood bag is a
requirement under the Drugs & Cosmetics Rules, 1945, under section 32. Packing and labelling of imported
drugs.—No drug shall be imported unless it is packed and labelled in conformity with the rules in Parts IX
and X 2[*] and further conforms to the standards laid down in Part XII provided that in the case of drugs
intended for veterinary use, the packing and labelling shall conform to the rules in Parts IX and X and Schedule
F and Blood is categorized as a 'drug' under Section 2 (b) of the Drugs and Cosmetics Act, 1940 and therefore,
it is also covered under definition of goods within the meaning of Section of 2(1)(d)(i) of Consumer Protection
Act, 1986.

The statement of the blood bank that the blood bank cannot be held liable for the same since it had taken all
the reasonable precautions and there is always an inherent risk in blood transfusion because a donor, who,

14
(1995) 6 SCC 651
15
25 September, 2006 CPJ 228 NC
16
CC/12/112

MEMORIAL ON BEHALF OF PETITIONER

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despite having HIV virus in his blood, being in window period when tested, the aforementioned test would
give negative test report cannot be maintained as it is inherently mandatory that pre-blood transfusion check
should be carried out, before blood is transfused, by Blood Bank as well as hospital authorities, where patient
is admitted.

In Sita Ram Saini s/o Kahnyalal v Life Care Blood Bank17, it is mandatory that pre-blood transfusion check
should mandatorily be carried out, before blood is transfused, by Blood Bank as well as hospital authorities,
where patient is admitted. If hospital authorities failed to carry out mandatory checks prior to transfusion of
blood and post transfusion reaction then it clearly amounts to medical negligence on their part. Here too the
attending doctor despite the missing labels didn’t attempt to test the blood before transfusion hence it amounts
to tort of the medical negligence. Besides the transfusion had caused her mental and emotional trauma to the
respondent.

Also, in further assertion of the blood bank, the blood bank contented that paternity test should be done for
this situation prior to admitting the allegations made by the complainant, bears no value as paternity test will
give result if the husband of the Petitioner is the father or not but after about 3 months of conceiving the child,
the petitioner went under a test of HIV and the results came negative, and henceforth, it is unreasonable to
breach the privacy of the Petitioner for no cause.

III.3) No real and valid consent for the blood transfusion, as the complainant wasn’t informed about
the inherent risks involved.

The doctor before performing any procedure must obtain patient's consent 18. Informed consent should be
obtained sometime prior to the procedure so that the patient does not feel pressurised or rushed to sign. On the
day of surgery, the patient may be under extreme mental stress or under influence of pre-medicant drugs which
may hamper his decision-making ability. Consent remains valid for an indefinite period, provided there is no
change in patient condition or proposed intervention. It should be confirmed at the time of surgery. 19

In M. Chinnaiyan vs Sri Gokulam Hospital and Anr. on 25 September 20, it is stated that consent is necessary
before blood transfusion and here the same was not done either.

No one can consent on behalf of a competent adult. In Dr. Ramcharan Thiagarajan Facs v. Medical Council
of India case21, disciplinary action was awarded to the surgeon for not taking a proper informed consent for
the entire procedure of kidney and pancreas.
None of the criteria were actually fulfilled and hence the consent cannot be called as valid consent. Therefore,
NCDRC order upholding the decision of the SCDRC of holding the Targaryen Charitable Blood Bank and
Tyrion Lannister liable for deficiency in service and medical negligence is not liable to be set aside.

ISSUE IV: - Whether the Central and State Government’s refusal to free treatment of a minor suffering
from a rare disease, where the parent of the child cannot afford the treatment is in violation of Article
21 of the Constitution of Indica?

17
CC/106/2016
18
Indian Journal of Anaesthesia (ISSN 0019- 5049), point 4&5
19
Samira Kohli v. Dr. Prabha Manchanda & Anr 1(2008) CPJ 56 (SC)
20
2006 CPJ 228 NC
21
WRIT PETITION No.11207/2013 (GM-RES)

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It is humbly submitted before the Supreme Court that refusal to free treatment of a minor suffering from a rare
disease, where the parent of the child cannot afford the treatment is in violation of Article 21 of the
Constitution of Indica.

Martin Luther King Junior said, "of all forms of inequality, injustice in health care is the most shocking and
inhumane". The present case many years later illustrates what he had said. The Central Government and the
Government of Westeros were obligated under Article 21 of the Constitution and Directive Principles of State
Policies to provide totally free treatment to the petitioner and like patients.

Minor son of the petitioner was diagnosed with a rare disease called Duchenne Muscular Dystrophy (DMD),
which affects the use of voluntary muscles in the body resulting in difficulty in walking, running or climbing
and even struggling to lift their head due to a weak neck. If the disease is left untreated, the child is unlikely
to survive. Given Jon’s history of HIV, the condition was far more severe than the usual cases of DMD. The
available therapy in the global market is called Antisense Oligonucleotide (AON). An antisense therapy
involving the drug ‘Exondys 51’, manufactured and supplied by Sarepta Therapeutics, Capitalia, is available
in Indica and approved by the Central Drug Standard Control Organization. No Indican drug company has
developed a competing drug for this disease till date. It is expected that patients receiving this treatment have
a high chance of surviving. The treatment, however, is lifelong and expensive. Given the existing condition
of Jon’s household, arranging for such treatment is next to impossible for the Petitioner.

The Government of Indica are obligated under Article 21 of the Constitution of India to provide totally free
treatment to the petitioner and like patients. The right to health was implicit in Article 21 of the Constitution.
In the case of All India Lawyers Union (Delhi Unit) v. Govt. of NCT of Delhi & Ors. 22, it has been held that
health was implicit in Article 21 of the Constitution.
While providing free treatment to Government employees at State expense and at the same time denying free
treatment to the non-Government employees (common man) on the alleged ground of financial constraints
was arbitrary, discriminatory and hit by Articles 14 and 21 of the Constitution of India. Ordinary people who
are not Government servants also need to be treated equally in the matter of medical treatment at Government
expense. The plea of financial constraint is not available to the Government after seventy-three years of the
Independence.

The Central Government needs to bring "Public Health" in Concurrent list of Constitution and make "Right
to Public Health" a Fundamental Right as well as enact a Central Legislation on Right to Public Health.

Some countries like Cuban Constitution adopted in 1976, obligated the State to assure that there shall be "no
sick person who does not receive medical attention." The Cuban Constitution also articulated specific
obligation of the State to provide a full range of universally accessible health services free of charge, as well
as to guarantee the promotion and protection of health of individuals.

It has been stated in the General Comment issued by UN,

"(12) The right to health in all its forms and at all levels contains the following interrelated and essential
elements, the precise application of which will depend on the conditions prevailing in a particular State party:

22
163 (2009) DLT 319 (DB)

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(a) Availability. Functioning public health and health-care facilities, goods and services, as well as
programmes, have to be available in sufficient quantity within the State party. The precise nature of the
facilities, goods and services will vary depending on numerous factors, including the State party's
developmental level. They will include, however, the underlying determinants of health, such as safe and
potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings,
trained medical and professional personnel receiving domestically competitive salaries, and essential drugs,
as defined by the WHO Action Programme on Essential Drugs.
(b) Accessibility. Health facilities, goods and services have to be accessible to everyone without
discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:
Non-discrimination: health facilities, goods and services must be accessible to all, especially the most
vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the
prohibited grounds.
Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections
of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous
populations, women, children, adolescents, older persons, persons with disabilities and persons with
HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as
safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural
areas. Accessibility further includes adequate access to buildings for persons with disabilities.
Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment
for health-care services, as well as services related to the underlying determinants of health, has to be based
on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable
for all, including socially disadvantaged groups. Equity demands that poorer households should not be
disproportionately burdened with health expenses as compared to richer households.
Information accessibility: accessibility includes the right to seek, receive and impart information and ideas
concerning health issues. However, accessibility of information should not impair the right to have personal
health data treated with confidentiality.
(c) Acceptability. All health facilities, goods and services must be respectful of medical ethics and culturally
appropriate, i.e., respectful of the culture of individuals, minorities, peoples and communities, sensitive to
gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health
status of those concerned.
(d) Quality. As well as being culturally acceptable, health facilities, goods and services must also be
scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical
personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and
adequate sanitation.’’23

In the case of Paschim Bangal Khet Mazdoor Samity and Others 24, a member of the petitioner Mazdoor Samity
suffered a brain injury after falling from a train and was denied treatment at several hospitals due to lack of
expertise and lack of beds and was forced to seek treatment at a private hospital. The petition was filed for
compensation of the expenses incurred. The Supreme Court observed that the obligation to provide medical
care was an obligation of the welfare state and held "The Constitution envisages the establishment of a welfare
State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is
to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of
the obligations undertaken by the Government in a welfare State. The Government discharges this obligation
by running hospitals and health centres which provide medical care to the person seeking to avail of those

23
General Comment No. 14 issued by the United Nations Committee on Economic, Social and Cultural Rights in 2000
24
(1996) AIR SC 2426/ (1996) 4 SCC 37

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facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person.
Preservation of human life is thus of paramount importance. The government hospitals run by the State and
the medical officers employed therein are duty-bound to extend medical assistance for preserving human life.
Failure on the part of a government hospital to provide timely medical treatment to a person in need of such
treatment results in violation of his right to life guaranteed under Article 21. It is no doubt true that financial
resources are needed for providing these facilities. But at the same time, it cannot be ignored that it is the
constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary
for this purpose has to be done. In the matter of allocation of funds for medical services the said constitutional
obligation of the State, has to be kept in view. It is necessary that a time-bound plan for providing these
services should be chalked out keeping in view the recommendations of the Committee as well as the
requirements for ensuring availability of proper medical services in this regard as indicated by us and steps
should be taken to implement the same.”
In Consumer Education and Research Centre and Others v. Union of India and Others25, the Supreme Court
held "Therefore, we hold that right to health, medical aid to protect the health and vigour to a worker while in
service or post retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48A and
all related Articles and fundamental human rights to make the life of the workman meaningful and purposeful
with dignity of person. It would thus be clear that in an appropriate case, the Court would give appropriate
directions to the employer, be it the State or its undertaking or private employer to make the right to life
meaningful; to prevent pollution of work place; protection of the environment; protection of the health of the
workman or to preserve free and unpolluted water for the safety and health of the people. The authorities or
even private persons or industry are bound by the directions issued by this Court under Article 32 and Article
142 of the Constitution.

And hence for the above-mentioned reasons, it is submitted before the Hon'ble Supreme Court that he Central
and State Government’s refusal to free treatment of a minor suffering from a rare disease, where the parent of
the child cannot afford the treatment is in violation of Article 21 of the Constitution of Indica.

25
(1995) 3 SCC 42

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Prayer
Therefore, in the light of the issues raised, arguments advanced, and authorities cited, it is most humbly prayed
that your lordship may please to admit the petition and my most humble submission before the Hon’ble Court
that the decision of the principal judge should be set aside, the decision of the National Disease Tribunal
denying the liability of Doctor Samuel Tarly and Citadel Hospital for the violation of section 9 of HIV AIDS
Act, 2017, should be set aside, NCDRC order upholding the decision of the SCDRC of holding the Targaryen
Charitable Blood Bank and Tyrion Lannister liable for deficiency in service and medical negligence should
be set aside and hold the Central and State Government liable for not providing fundamental right to live thus
violating Article 21 of the Constitution of Indica
AND/OR

Pass necessary order/orders as your lordship may deem fit in the interest of Justice, Equity and Good
Conscience.
And your petitioner as in duty bound shall ever pray.

COUNSELS FOR THE PETITIONERS

MEMORIAL ON BEHALF OF PETITIONER