moot problem and moot memorial, Lecture notes of Contract Law

Download moot problem and moot memorial and more Lecture notes Contract Law in PDF only on Docsity! TEAM CODE _____ THE 5TH AMITY LAW SCHOOL INTRA COLLEGE MOOT COURT COMPETITION- 2011 IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW (CASE NO.________ OF 2011) IN THE MATTER OF: MS. PRABHA DEVI, --- PETITIONER Versus STATE OF UTTAR PRADESH, --- RESPONDENT MEMORIAL for RESPONDENT TEAM CODE _____ THE 5TH AMITY LAW SCHOOL INTRA COLLEGE MOOT COURT COMPETITION- 2011 IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW (CASE NO.________ OF 2011) IN THE MATTER OF: MS. PRABHA DEVI, --- PETITIONER Versus STATE OF UTTAR PRADESH, --- RESPONDENT MEMORIAL for RESPONDENT Table of Abbreviation IV MEMORIAL for RESPONDENT TABLE OF ABBREVIATION § …. Section ¶/¶¶ …. Paragraph(s) A.I.R …. All India Reporter A.L.J …. Allahabad Law Journal A.P. …. Andhra Pradesh ACR …. Allahabad Criminal Rulings AIHC …. All India High Court Cases AIR …. All India Reporter ALD(Cri) …. Andhra Legal Decision (Criminal) All ER …. All England Law Reports All. …. Allahabad ALT …. Andhra Law Times AWC …. Allahabad Weekly Cases BLJR …. Bihar Law Journal Reports Bom. L.R. …. Bombay Law Reporter Bom. …. Bombay C.L.J …. Calcutta Law Journal Cal. …. Calcutta CCR …. Current Criminal Reports CriLJ …. Criminal Law Journal DLT …. Delhi Law Times ed./eds. …. Editor(s) Table of Abbreviation V MEMORIAL for RESPONDENT edn. …. Edition Guj. …. Gujarat H.P. …. Himachal Pradesh HL …. House of Lords Hyder. …. Hyderabad I.C. …. Indian Cases I.L.R …. Indian Law Reports (Gov. of India Publications) Ibid. …. Ibidem JLJ …. Jabalpur L aw Journal JT …. Judgment Today KCCR …. Karnataka Civil and Criminal Reporter Ker. …. Kerala KLT …. Kerala Law Times Ltd. …. Limited M.B. …. Madhya Bharat M.L.J …. Madras Law Journal M.P. …. Madhya Pradesh Mad …. Madaras MPHT …. MP High Court Today Mys. …. Mysore Nag. …. Nagpur No. …. Number Ori. …. Orissa Table of Abbreviation VI MEMORIAL for RESPONDENT Ors. …. Others Pat. …. Patna p./ pp. …. Page/ Pages Punj. …. Punjab Pvt. …. Private QB …. Queen‟s Bench Rang. …. Rangoon Rep. …. Reprint S.C.A. …. Supreme Court Appeals S.C.J …. Supreme Court Journal S.C.R. …. Supreme Court Reports Sau. …. Saurashtra SCALE …. Supreme Court Almanac Supp. …. Supplement T.C. …. Travancore and Cochin U.S. …. U.S. Supreme Court UJ …. Unreported Judgment v. …. Versus Vol. …. Volume WritLR …. Writ Law Reporter Index of Authorities IX MEMORIAL for RESPONDENT Ramamoorthy alias Vannia Adikalar v. State of Madras, 1992 CriLJ 2074: MANU/TN/0140/1990 ......................................................................................................... 19 Ramanuja v. State of T.N., AIR 1972 SC 1586 .................................................................... 12 Ratilal Panachand Gandhi v. State of Bombay and Ors. (1954) SCR 1055 ........................ 9 Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR 1055 ..................... 10 Reliance Telecommunications Ltd. v. S. I. of Police, W.P. (Cri) No. 6433 of 2010: MANU/KE/2352/2010 ......................................................................................................... 14 Reynolds v. U.S., (1879) 98 US 145. ........................................................................................ 2 Reynolds v. US., (1978) 98 US 145 .......................................................................................... 9 Saifuddin v. State of Bombay, AIR 1962 SC 853 ................................................................... 9 Shaibya Shukla v. State of U.P., AIR 1993 All 171 ............................................................... 5 Smt. Gian Kaur v. State of Punjab, AIR 1996 SC 946: 1996 (1) ALD (Cri) 102: 1996 (1) ALT (Cri) 535: 1996 (2) BLJR 809: 1996 CriLJ 1660: 1996 (1) CTC 454: (1996) 2 GLR 563: JT 1996 (3) SC 339: 1996 (2) SCALE 881: (1996) 2 SCC 648: [1996] 3 SCR 697 .... 7, 15 Smt. Selvi and Ors. v. State of Karnataka, 2010 (2) Crimes 241 (SC) ................................. 8 Sri Jagannath Temple Puri Management Committee v. Chintamani Khuntia, (1997) 8 SCC 422 ............................................................................................................................... 12 State of Gujarat v. Mirzapur Moti Kurshi Kassab Jamat, AIR 2006 SC 212 .................. 12 State of U.P. v. Shah Mohd., AIR 1969 SC 1234 ................................................................... 5 State of West Bengal v. Ashutosh Lahiri, AIR 1995 SC 464 .............................................. 12 Swarup v. State of Bihar, AIR 1979 SC 809 ......................................................................... 12 T.V. Narayana v. Venkata Subbamma, AIR 1996 SC 1807 ............................................... 11 The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshimindra Thirtha Swamiar of Sri Shirur Mutt, (1954) 1 SCR 1005 ................................................ 9 Index of Authorities X MEMORIAL for RESPONDENT Torcaso v. Watkins, (1961) 367 US 488.................................................................................. 2 Statutes Code of Criminal Procedure, 1973. ......................................................................................... 14 The Constitution of India. .......................................................................................................... 6 The Indian Penal Code, 1860. .................................................................................................. 18 The Police Act, 1861................................................................................................................ 14 Books Referred A. Ashworth, Principles of Criminal Law (Oxford: Clarendon Press, 1991).......................... 17 Durga Das Basu, Commentary on The Constitution of India ( vol 3, LexisNexis: 2008) ......... 2 G. William, Salmond on Jurisprudence (LexisNexis: 2007) ................................................... 17 W. O. Russell, Russell on Crime (J.W.C. Turner Ed., Universal Law Publishing Pvt., New Delhi: 2001) ......................................................................................................................... 17 Articles A.S. Jain, “Santhara - A Religious Fast To Death” (available http://www.jainworld.com/jainbooks/images/29/SANTHARA_- _A_RELIGIOUS_FAST.htm) [accessed August 20, 2011] ................................................ 13 Prakash Bhandari, “Another Jain Woman on fast unto Death” (available http://articles.timesofindia.indiatimes.com/2006-09-30/india/27821360_1_Santhara-jain- festival-age-old-jain-ritual [accessed August 16,2011]) ........................................................ 4 Wikipedia, “Santhara” (available http://en.wikipedia.org/wiki/Santhara [accessed August 18, 2011]) ..................................................................................................................................... 4 Index of Authorities XI MEMORIAL for RESPONDENT Other Authorities Draft Penal Code, Appendix Note B.,...................................................................................... 18 Sayre, Mens Rea (Harvard Law Review: 1932), ..................................................................... 17 Norman Chever, A manual of Medical Jurisprudence for Bengal and North Western provinces(3 rd edn.,Bengal Military Press: 2004) ................................................................. 19 Statement of Issues VIII MEMORIAL for RESPONDENT STATEMENT OF ISSUES I. WHETHER THE PRACTICE OF SANTHARA ENJOYS PROTECTION UNDER CONSTITUTIONAL PROVISIONS. II. WHETHER THE ADMINISTRATIVE INTERVENTION WAS IN BREACH OF THE PETITIONERS FUNDAMENTAL RIGHT TO OBSERVE HER RELIGIOUS PRACTICE. Summary of Arguments IX MEMORIAL for RESPONDENT SUMMARY OF ARGUMENTS I. WHETHER THE PRACTICE OF SANTHARA ENJOYS PROTECTION UNDER CONSTITUTIONAL PROVISIONS. The practice of Santhara is unconstitutional as it vehemently violates the principles of Article 21 which ensures right to life, whereas Santhara is a practice that encourages suicide by individual in name of religion. There is no evidence to suggest that Santhara is a essential practice of Jain religion, removal of such illegal practice would not change the principles enshrined in Jain religion. No such practice in name of religion enjoys protection under Article 25 of Indian Constitution. And, contending that such practice is performed with one‟s home, would not amount to breach of privacy as police has such powers to stop such illegal activity. II. WHETHER THE ADMINISTRATIVE INTERVENTION WAS IN BREACH OF THE PETITIONERS FUNDAMENTAL RIGHT TO OBSERVE HER RELIGIOUS PRACTICE. The local police of the State of U.P. is empowered under § 149 the Code of Criminal Procedure as well as under § 23 the Indian Police Act, 1861 to prevent the commission of cognizable offences. As an attempt to suicide (§ 309 of IPC) is a cognizable offence as per Schedule –I of the code, hence the police were justified in preventing the commission by using a reasonable force against the petitioner (offender) and force feeding her. That the petitioner never had a spiritual motive behind the practice of santhara but the ill intent to end her life which in consequence might end her miseries. The ill-practice is cloaked in the guise of religious sanction which is a sham, because there is no pride in committing suicide. And, lastly that our constitution does not provide a right to extinguish one‟s life while enumerating the right to life. Arguments Advanced 1 MEMORIAL for RESPONDENT ARGUMENTS ADVANCED The courts have the power to determine whether a particular rite or observance is regarded as essential by the tenets of a particular religion. 1 I. WHETHER THE PRACTICE OF SANTHARA ENJOYS PROTECTION UNDER CONSTITUTIONAL PROVISIONS. 1. Santhara is a practice where an individual‟s takes a vow to fast until death in name of religion. The sanctity of life which has been held in number of cases by the Hon‟ble Supreme Court ceases to exist in such type of religious activity. United States which is considered to be the mother of liberty was also provisions to restrict such illegal activity in name of religion. 2. The first Amendment to America‟s Constitution (1791) says: “Congress shall make no law respecting an establishment of religion or…prohibiting the free exercise thereof” 3. The freedom to practice religion taken to an extreme can be used as a license for illegal conduct. But even when the conduct stems from deeply held conviction, government resistance to it is understandable. The inevitable result is a clash between religion freedom and social order. 2 1 Acharya Jagadishwarananda Avadhuta v. Commissioner of Police, (1983) 4 SCC 522: AIR 1984 SC 51; see Also Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984: (2004) 12 SCC 770. 2 THE CHALLENGE TO DEMOCRACY (Government of America) by Janda, Berry and Goldman, Chap XVII, “Order and Civil Liberties” at pg. 627-28 Arguments Advanced 4 MEMORIAL for RESPONDENT 9. It is humbly submitted that although fasting is a part of Indian culture, made famous by independence leader Mahatma Gandhi, who took up hunger strikes in protest against British rule, laws do not permit euthanasia or suicide. Ultimate result of this practice in cloak of religion is death of individual, a voluntary practice taken up by a Jain individual which results in death. Jains claim that Santhara is the most ideal, peaceful, and satisfying form of death. Many Jain religious leaders contend that when a person commits suicide, it is usually in anger or depression. The act of suicide is conducted by isolating oneself from the world and the purpose can be given in a suicide note 9 . But it is asserted that in majority of cases Santhara is practices by aged women 10 who have atleast suffered a trauma. 10. In the case of District Registrar and Collector v. Canara Bank, 11 it was held by the Hon‟ble Supreme Court that life and liberty can only be curtailed by satisfying the triple test:- a) It must prescribe a procedure b) The procedure must withstand the test of one or more of the fundamental rights conferred under Art. 19 which maybe applicable in a given situation. Article 21 bears the same signification. Is then the word "personal liberty" to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to "assure the dignity of the individual" and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the trainers merely to draw attention to the concepts underlying the Constitution which would point to such vital words as "personal liberty" having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories. 9 Wikipedia, “Santhara” (available http://en.wikipedia.org/wiki/Santhara [accessed August 18, 2011]) 10 Prakash Bhandari, “Another Jain Woman on fast unto Death” (available http://articles.timesofindia.indiatimes.com/2006-09-30/india/27821360_1_Santhara-jain-festival-age-old-jain- ritual [accessed August 16,2011]) “ A day after 60-year-old Shwetambar Jain woman Vimla Devi Bhansali died while on terminal fast under the faith's Santhara tradition in the Pink City, another case has come to light of 93-year-old woman, who has given up food and water for the past 24 days under this ritual”. 11 (2005)1 SCC 496 Arguments Advanced 5 MEMORIAL for RESPONDENT c) It must also liable to be tested with reference of Art.14. 11. The procedure established by law for deprivation of rights conferred by Art.21 must be fair, just and reasonable 12 . In the case of Krishnan v. State of Madras, 13 it was decided that “Procedure established by law‟ in Art.21 means the law prescribed by parliament at any given point. Parliament only has the power to change its procedure by enacting a law, by amending it and when the procedure is so changed it becomes the „procedure established by law”. 12. The term Law here signifies “Law 14 ” made by the legislature in accordance with its ordinary legislative procedure. Also in the case of Gopalan v. State of Madras, 15 it was observed Law in this expression means state made-law or enacted law and not the general principles of natural justice 16 . Procedure established by law thus means procedure prescribed by legislature. And held:- “Art.21 affords no protection against competent legislative action in the field of substantive criminal law, for there is no provision for judicial review, on the grounds of reasonableness or otherwise of such laws…” 13. Similarly, in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 17 . It was held thus: 12 Olga Tellis v. Bombay Municial Corporation, AIR 1986 SC 180 13 AIR 1951 SC 301; also referred in State of U.P. v. Shah Md., AIR 1969 SC 1234 (1238) 14 “ The expression “‟Law” does not include within itself ordinance, order, bye-laws, rule, regulation, notification, custom or usage having the force of law nor Amendment of Constitution in accordance with the prescribed Art.368” ; Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461. 15 (1950) SCR 88 16 Ram Singh v. State of Delhi, AIR 1951 SC 270 17 AIR 1981 SC 746; also referred in Bijaylakshmi Tripathy v. Managing Committee of Working Women Hostel, AIR 1992 Ori 242; Mohini Jain v. State of Karnataka, AIR 1992 SC 1858; Shaibya Shukla v. State of U.P., AIR 1993 All 171; Inderpuri General Store v. Union of India, AIR 1992 J&K 11. Arguments Advanced 6 MEMORIAL for RESPONDENT “We think right to life includes right to live with human dignity and all that goes along with it, namely the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about, mixing and commingling with fellow human being. Right to life must include right to carry on such functions and activities to constitute the bare minimum necessities of human self”. 14. When there is a constitutional 18 guarantee that is so sacrosanct in nature, it cannot therefore be said to include such activities like Santhara within its meaning and nature of religious guarantee. The Hon‟ble Supreme in plethora of cases has held that guarantees given under Art.21 should not be confused with religious freedom especially when these freedoms are followed by corrupt practices. 15. If Art. 21 confers on a person the right to live a dignified life, does it also confer a right not to live if the person chooses to end his life? If so, then what is the fate of the provisions in the penal code making attempt to commit suicide penal? 16. Hon‟ble Supreme Court tried to resolve this controversy in P. Rathinam v. Union of India, 19 while addressing the controversy on the relationship. This view constituted an authority for the proposition that an individual has the “right to do as he pleases with his life and to end it if he so pleases. A person cannot be forced to enjoy right to life to his detriment, disadvantage or disliking”. The Court argued that the word life in Art. 21 means “right to live with human dignity and the same does not merely connote continued drudgery. Thus the Court concluded that the right to live of which Art. 21 speaks of can be said to bring in its trail the right not to live with forced life”. 18 The Constitution of India. 19 AIR 1994 SC 1844. Arguments Advanced 9 MEMORIAL for RESPONDENT B. That protection under Art. 25 is ensured when a religious belief or practice fulfils certain prerequisite. The respondent submits that every individual has the following enshrined fundamental rights. Firstly, Freedom to practice a religion of his choice [B.1] and freedom of conscience [B.2]. B.1 Freedom to Practice a religion of his choice. 23. The Courts have interpreted the clause to be subject to some limitations which are necessary in the interest of society itself. “However free the exercise of religion may be, it must be subordinate to the criminal law of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation”. 28 24. Freedom of Religion would not allow a man to commit human sacrifice 29 even though human sacrifice is sanctioned by some religious creed (some people in India are adherents of a set of theistic philosophies called Tantrism which forms the basis and founding philosophies of all Tantric cults both Hindu and Buddhist. Most either use animal sacrifice or symbolic effigies, but a minority continue to practice human sacrifice despite the risk of prosecution 30 ); or to commit an act which is a crime under penal law 31 25. It is submitted before this Court that in the case of The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshimindra Thirtha Swamiar of Sri 28 Davis v. Beason, (1890) 133 US 333 29 Saifuddin v. State of Bombay, AIR 1962 SC 853 30 According to the Hindustan Times, there was an incident of human sacrifice in western Uttar Pradesh in 2003. Similarly, police in Khurja reported "dozens of sacrifices" in the period of half a year in 2006. 31 Arver v. US, (1918) 245 US 366; also referred in Reynolds v. US., (1978) 98 US 145; Employment Division Department of Human Resources v. Smith., (1990) 494 US 879. Arguments Advanced 10 MEMORIAL for RESPONDENT Shirur Mutt: 32 Mukherjee, J. observed that State interference can be justified on certain grounds even if it means to restrict the scope of Art. 25. It was held that:- “The state upon free exercise of religion are permitted both under Art. 25 and 26 restrict the activities on ground of public order, morality and health. Art. 25 reserves the right of State to regulate of restrict any economic, financial, political or any other secular activities which may be associated with religious practice and there is a further right given to the State by Sub-Clause (b )under which the State can legislate for social welfare and reform even though by doing so it might interfere with religious practices…” B.2 Freedom of Conscience. 26. Conscience is the inmost thought or the sense of moral correctness that governs or influences the action of an individual. Every individual justifies his omission and commission with reference to same influencing force. One of the articulate and outward expressions of the conscience is religion 33 . 27. Freedom of Conscience is restricted by doctrine of essential element , in Bijoe Emmanuel v. State of Kerala, 34 the court concluded that a belief or practice which is a part of conscience can be questioned on the ground of it reasonableness and accordingly held:- “The question is not whether a particular religious belief or practice appeals to our reason or sentiment, but whether the belief is genuinely and conscientiously held as a 32 (1954) 1 SCR 1005; also referred in Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR 1055 33 Ratilal Panachand Gandhi v. State of Bombay and Ors., (1954) SCR 1055 34 AIR 1987 SC 748 Arguments Advanced 11 MEMORIAL for RESPONDENT part of the profession or practice of the religion. Our personal views and reactions are irrelevant”. 28. The Courts in India have interpreted the religious freedom and rights guaranteed under Art. 25 in light of reasonable restrictions imposed on them. As evident in the case of Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, 35 the Court take into consideration the conscience of the community and the tenets of the religion concerned to decide whether a particular practice is „religious‟ in character and if so whether it is an essential and integral part of the religion. There cannot be addition or subtraction to essential or integral part or practice of a religion as they are the very essence of that religion and alteration will change the fundamental character of the religious concerned. It is such permanent essential parts which are protected under the ambit of Art. 25. Nobody can say that an essential part or practice of one‟s religion has changed from a particular date or by an event. Such alterable parts are mere embellishments to the essential part or practice and not protected under Art. 25. 29. What is an essential or integral part or practice of religion 36 ? It was held that essential part means the core beliefs upon which the religion is founded. Essential practice those practice that are fundamental to follow a religious belief. It is the cornerstone of essential parts or practices that superstructure of religion is built, without which a religion will be no religion. 30. It is pertinent to mention that in the case of „Ananda Margis‟ the order founded in 1955, and the practice of Tandava dance was introduced in 1966. Even without the 35 AIR 2004 SC 2984 36 “Religion is not necessarily theistic…Religion is that which binds the man with his Cosmos, his Creator, or superior force, and his faith in the superior force which regulate the existence of sentiment beings and the force of the universe.” Held in A.S. Narayana v. State of A.P., AIR 1996 SC 1765. Arguments Advanced 14 MEMORIAL for RESPONDENT II. WHETHER THE ADMINISTRATIVE INTERVENTION WAS IN BREACH OF THE PETITIONERS FUNDAMENTAL RIGHT TO OBSERVE HER RELIGIOUS PRACTICE. 35. The administrative intervention resorted to by the local police was an act in furtherance of the power coupled with duty to prevent the commission of a cognizable offence, and to maintain law and order in the state. Firstly, the administrative action was justified [A], Secondly, the petitioner intends to unlawfully end her life [B], Thirdly, the petitioner had no spiritual motive but to end her miseries by ending her life [C], Lastly, the state has to safeguard the larger interests of the society [D]. A. That the administrative action was justified. 36. As per Chapter XI, § 149 of the Code, 47 every police officer has the power and statutory duty in taking steps to prevent the commission of cognizable offences. Even the Police Act of 1861, under § 23 enumerates such a duty. Further, it is the prevention of crime is one of the prime purposes of the constitution of a police force. In Harrison Malayalam Ltd. v. State of Kerala and Ors., 48 the Kerala High Court when deciding over the issue of maintainence of law and order by the police and eviction of encroachers from the petitioner company observed in ¶ 6 of the judgment that „the police fails in discharging their statutory duty, the same is liable to be corrected by issuing appropriate writ for police protection, so as to maintain rule of law.‟ 47 Code of Criminal Procedure, 1973. 48 2007 (4) K.L.T. 540; see Also Reliance Telecommunications Ltd. v. S. I. of Police, W.P. (Cri) No. 6433 of 2010: MANU/KE/2352/2010. Arguments Advanced 15 MEMORIAL for RESPONDENT 37. The local police while obstructing Ms. Prabha Devi, during the observance of the unlawful Samadhi were justified because of the above-mentioned mandates in the statutory laws. And, that the police action is justified in using any reasonable amount of force to prevent the commission of such offence which demonstrates that the force feeding of the petitioner was permissible because she appeared weak and famished at the time of intervention. Such an appearance could have been probable considering either of the following reasons: a. That she had starved her body for many days, or b. That she had become weak due to her treatment and physical suffering coupled with voluntary denial of food. 38. Since, preventive jurisdiction under § 149 of the Code 49 is classified under two broad heads. The first may be called magisterial action; and the second police action. The cases falling under the second head are purely executive and unlike, the first head there is no judicial inquiry at all; and from the very urgency of the cases the police have to act on their own initiative and of their own knowledge. The powers given are very wide indeed and their exercise is ordinarily summary. 39. The petitioner was not arrested because the commission of the offence was prevented by force feeding and was left by a warning keeping in mind her physical ailments and old age. But, if the commission of the offence cannot be prevented then the petitioner would have been arrested. 50 B. That the petitioner intends to unlawfully end her life. 49 Raghunath v. State, 1963 CriLj 899; also in Emperor v. R. Vinayak Dhulekar, 1925 All 165, wherein the court held: „to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and Public nuisance. ‟ 50 § 151 of the Code; see Also Jagdish Chander Bhatia v. State, 1983 CriLJ NOC 235 (Del); Arunish Singh v. State of M.P., 1984 CrLJ 1616(MP). Arguments Advanced 16 MEMORIAL for RESPONDENT 40. Every civilized legal system recognises the right to life. That right to life does not include right to die which has been emphasised by the Apex court in a plethora of judgments overruling its earlier verdict of P. Rathinam v. Union of India, 51 in Smt. Gian Kaur v. State of Punjab, 52 by a five judge Constitution Bench of the Supreme Court, holding that Article 21 cannot be construed to include within it the „right to die‟ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that § 309 is violative of Article 21. The right to die is inherently inconsistent with the right to life‟. 41. The court made it clear that the 'Right to Life', including the right to live with human dignity, would include the existence of such a right till the end of natural life. This also includes the right to a dignified life up to the point of death, including a dignified procedure of death. This may include the right of a dying man to die with dignity, when his life is ebbing out. However, according to the court, the „Right to Die‟ with dignity at the end of life is not to be confused with the 'Right to Die' an unnatural death. 42. The Andhra Pradesh High Court in Chenna Jagadeeswar v. State of Andhra Pradesh, 53 wherein it was held: “... in a country like India, where the individual subjected to tremendous pressure, it is wise to err in the side of caution. To confer a right to destroy one-self and to take it away from the purview of the Courts to enquire into the act would be one step down 51 AIR 1994 SC 1448, wherein a two- judge of the Supreme Court through Justice B.L. Hansaria invalidated § 309 of the Penal Code, which made attempt to commit suicide an offence, on the ground that it „violated the fundamental right to life‟. 52 AIR 1996 SC 946: 1996 (1) ALD (Cri) 102: 1996 (1) ALT (Cri) 535: 1996 (2) BLJR 809: 1996 CriLJ 1660: 1996 (1) CTC 454: (1996) 2 GLR 563: JT 1996 (3) SC 339: 1996 (2) SCALE 881: (1996) 2 SCC 648: [1996] 3 SCR 697; ¶ 22 “Whatever may be the philosophy of permitting a person to extinguish his life be committing suicide, we find it difficult to construe Article 21 within it the “right to die” as a part of the fundamental right guaranteed therein.” (Emphasis supplied) 53 (1988) Cri 357 : 1988 Cri LJ 549 Arguments Advanced 19 MEMORIAL for RESPONDENT C.1 That the attempt to commit suicide was intentional by the petitioner. 48. The essence of suicide is an intentional self- destruction of life. The word „to commit suicide‟ is for a person voluntarily to do an act (or, as it is submitted, to refrain from taking bodily sustenance), for the purpose of destroying his own life, being conscious of that probable consequence, and having, at the time „sufficient mind to will the destruction of life‟. 61 49. The word „suicide‟ is not defined in the Penal Code. 62 Therefore, one must look at the dictionary meaning of the word. As held by the Kerala High Court, a finding of suicide must be based on evidence of intention. Every act of self- destruction is, in common language, described by the word „suicide‟, provided it is the intentional act of a party knowing the probable consequence of what he is about to commit. 63 50. Further, the causes and circumstances leading one to take such a decision are wholly irrelevant for deciding the question as to whether the death was a suicide or not. Similarly, whether she was responding or not responding to treatment or whether she had been reeling under a liver cancer is wholly immaterial to the commission of the act because the act was done intentionally and voluntarily. The petitioner had calculated the risks and probable consequences. The relatives as well as the family suppressed this information to which they were duty bound to disclose, as per law. 51. Unless there is some overt declaration by the accused of his intention to fast unto death, it is difficult to be sure that he intended to preserve to the bitter end. 64 However, in the instant case the petitioner had proclaimed to observe the vow of Santhara and that seldom it is seen the devotee withdrawing himself at any future 61 Clift v. Schwabe, (1846) 3 CB 437. 62 The Indian Penal Code, 1860. 63 C. A. Thomas Master and etc. v. Union of India and Ors., 2000 CriLJ 3729, ILR 2000 (3) Kerala 368. 64 Ramamoorthy alias Vannia Adikalar v. State of Madras, 1992 CriLJ 2074: MANU/TN/0140/1990c Arguments Advanced 20 MEMORIAL for RESPONDENT stage during its observance. No matter he may be asked if he intends to proceed further in the Samadhi. 52. Hence, a decision taken by persons to voluntarily put an end to his life on the footing that one has led a successful life and the mission in his life is complete would amount to suicide. 65 These arguments don‟t hold water. As a noteworthy fact, Physical Suffering is one of the major causes of suicide in India. 66 Santhara has now become a way for families to avoid taking care of the aged, and win some religious prestige along the way. D. That the state has to safeguard the larger interests of the society. 53. Way back in 1958, the Supreme Court in Mohd. Hanif Qureshi & Ors v. State of Bihar, 67 took on the issue of a ban on cow slaughter impinging on Muslim festivities during -Id and on the fundamental right of butchers to carry on their trade. But this time, the issue is decidedly more sensitive, and its consequences far more profound. It involves the extinguishment of a human life. 65 C. A. Thomas Master and etc. v. Union of India and Ors., 2000 CriLJ 3729, ILR 2000 (3) Kerala 368. 66 Norman Chever, A manual of Medical Jurisprudence for Bengal and North Western provinces(3 rd edn.,Bengal Military Press: 2004), p. 670. 67 AIR 1958 SC 731, [1959] 1 SCR 629. Prayer 21 MEMORIAL for RESPONDENT PRAYER Wherefore, may it please the Court in the light of the questions presented, arguments advanced, and authorities cited, to adjudge and declare that: I. To adjudge and declare that santhara is not a core jain ritual and hence, the petitioner has no fundamental right to observe the immoral practice. II. To further, declare that such observances cloaked in the guise of religion are contrary to the established principles of Article 21 of the Indian Constitution and deserve necessary action under the statutory penal laws of the country. III. To dismiss the petition of the petitioner and impose a fine which this Hon’ble Court deems fit. The Hon‟ble High Court may be pleased to pass any such order in favour of the respondent and for this act of kindness the respondents are duty bound and shall ever pray. All of which is respectfully affirmed and submitted X______________________________ COUNSELS FOR THE RESPONDENT