1247A

IN THE

HONOURABLE SUPREME COURT OF INDIA

AT NEW DELHI

PETITION MADE UNDER ARTICLE 139A OF THE CONSTITUTION OF INDIA, 1950 READ
ALONGSIDE ORDER XL OF THE SUPREME COURT RULES, 2013.

APPEAL NO. XXX/201

RENUKA SHENOY & ORS...……………………………………………………….THE APPELLANT

V.

MR. SIMON …………………………………….……………….………………THE RESPONDENT

MEMORIAL ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

Index of Authorties ........................................................................................................................ iii

Statement of Facts ........................................................................................................................... v

Statement of Jurisdiction................................................................................................................ vi

Issues for Consideration ................................................................................................................ vii

Arguments Advanced...................................................................................................................... 1

A). Clubbing of petitions before the High Court and appeal before the Supreme Court ....... 1

B). the Doctor on duty was not liable for going against the will of the deceased by
performing blood transfusion. ..................................................................................................... 2

C). the School Principal is liable for the corporal punishment given to samira. .................... 4

D). Samira had right to refuse medical treatment on ground of her religious beliefs. ........... 8

Prayer for Relief ............................................................................................................................ 11

ii
 INDEX OF AUTHORTIES

Cases

Common Cause vs. Union of India; Supreme Court of India, Writ Petition (Civil) No. 215 of
2005........................................................................................................................................... 10
Custody of a Minor 375 Mass. 733, 379 N.E.2d 1053 (1978) ........................................................ 3
Ganesh Chandra Shaha v. Jinraj Somani; 1965 CriLJ 24 ............................................................... 8
Gillick v West Norfolk AHA [1986] 1 AC 12................................................................................ 3
Gnaneshwar B Pettukota v Govt of India, (2005) 12 SCC 447 ...................................................... 1
Hasmukhbhai Gokaldas Shah v. State of Gujarat; 2008 SCC Online Guj 293 .............................. 6
In Re B (A Minor)(Wardship: Medical Treatment) 1 WLR 1421 (1981). ..................................... 3
In re Sampson 317 N.Y.S.2d 641 (NY Fain. C. 1970) ................................................................... 3
In re Seithfert 127 NE.2d 820 (NY 1955), In re Green 292 A.2d 387 (Pa. 1972) .......................... 2
International Financial Corporation v Bihar State Industrial Development Corporation, (2005) 10
SCC 179 ...................................................................................................................................... 1
Jacobson v. Massachusetts 197 U.S. 11 (1905) .............................................................................. 3
Jehovah’s Witnesses v King County Hospital 278 F. Supp. 488.................................................... 2
LK Venkat v Union of India, AIR 2012 SC 2503 .......................................................................... 1
Meyer v Nebraska 262 US 390 (1923) ........................................................................................... 2
Muhlenberg Hospital v Patterson 320 A.2d 518 (NJ Sup. C., Law D. 1974) ................................. 3
Newmark v Williams 588 A.2d 1108 (Del. 1991) .......................................................................... 2
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72E ................................................................ 3
Re R (A Minor)(Wardship: Consent to Treatment) [1992] Fam. 11 .............................................. 3
Re T (Adult: refusal of medical treatment); [1992] 4 All ER 649 ................................................ 10
Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 .................................. 3
Reynolds v United States 98 US 145, 166 (1878) .......................................................................... 2
Reynolds v. U.S. (98 US 145)......................................................................................................... 9
State v. H.A. Khandkar; AIR 1998 SC 3281 .................................................................................. 8
Stamford Hospital v. Vega, (236 Conn. 646 (1996) ....................................................................... 9
Unnikrishnan v State of Andhra Pradesh, (1993) 1 SCC................................................................ 6

iii
Statutes

The Constitution of India ................................................................................................................ 1

The Juvenile Justice (Care and Protection of Children) Act, 2000................................................. 7
The RTE Act, 2009 ......................................................................................................................... 7

Other Authorities

CHILDREN AND YOUNG PERSONS ACT 1933 .................................................................................... 2

Committee on the Rights of the Child, General Comment No. 8, ‘The right of the child to
protection from corporal punishment and other cruel or degrading forms of punishment’........ 5
Fay Rozovsky, Consent to Treatment: A Practical Guide, p.440 ................................................... 8
Guidelines for eliminating Corporal Punishment In Schools, issued by National Commission for
Protection of Child Rights(NCPCR)........................................................................................... 4
Lingle EA. Treating children by faith: colliding constitutional issues. J LEGAL MED
1996;17:301–6 ............................................................................................................................ 2
Refusal of Medical Treatment on Religious Grounds by John Kasparek ....................................... 9
Wash. Rev. Code 1 13.04.010(12), 1 13.04.095 (1961). ................................................................ 3

iv
 STATEMENT OF FACTS
 Samira, a 14 year girl was a student of 9th class at St. Mary’s Residential Public School.
Her father Mr. Simon belongs to the religious sect of Jehovah’s Witnesses her mother
Ms. June belongs to the Roman Catholic faith. Samira did not follow any faith, either
Jehovah’s Witnesses or Roman Catholic.
 Her school was hoisting the Inter-school Science Congress in which the principal of the
school gave her the responsibility to prepare a project on endangered species of flora and
fauna in the local area. Samira failed to submit the project on time so the principal gave
her the punishment to stand outside the Principal’s room till the teacher-in-charge of the
Congress came there. Samira fell down unconscious after standing there for around 2
hours.
 She was taken to the hospital where the doctor on duty Mr. Krishna Murthy looking at
her low level of hemoglobin and Sodium prescribed urgent blood transfusion. During
certain intervals, Samira became partly conscious. At those intervals, she objected to
transfusion of blood.
 In the meantime her father also reached the hospital and objected to the blood transfusion
on the religious grounds, though her mother wanted to save Samira at any cost. Request
for stopping the blood transfusion was rejected by the hospital staff and the doctor. After
the intervention of police she was discharged from the hospital.
 Mr. Simmon filed a police complaint against the Principal for corporal punishment
towards his daughter and filed a writ petition in High Court seeking a direction to police
to investigate the matter properly. Another writ petition was filed by a student in High
Court seeking medical treatment to Samira which was rejected by the High Court. An
appeal to this was filed in the Supreme Court.
 During the pendency of this appeal, Samira died. The principal filed a complaint against
her father alleging negligence leading to death of samira. After investigation the police
found him responsible for culpable homicide. To quash the proceedings Mr. Simmon
again approached the High Court. The Supreme Court decided to club all matter and
issued notices to the concerned parties.

Hence, the present matter.

v
 STATEMENT OF JURISDICTION

The Appellants most humbly submits to the jurisdiction of the Honourable Supreme Court of
India at New Delhi, which has the requisite jurisdiction to hear the present matter under Article
139A of the Constitution of India, 1950 read with Order XL of the Supreme Court Rules, 2013.

vi
 ISSUES FOR CONSIDERATION

A). WHETHER THE SUPREME COURT IN THE PRESENT MATTER HAS THE POWER TO CLUB THE

PETITIONS IN THE HIGH COURT AND APPEAL PENDING BEFORE IT.

B). WHETHER THE DOCTOR ON DUTY IS LIABLE FOR GOING AGAINST THE WILL OF THE

DECEASED BY PERFORMING BLOOD TRANSFUSION.

C). WHETHER THE SCHOOL PRINCIPAL IS LIABLE FOR THE CORPORAL PUNISHMENT GIVEN TO

SAMIRA.

D). WHETHER SAMIRA HAD RIGHT TO REFUSE MEDICAL TREATMENT ON GROUND OF HER

RELIGIOUS BELIEFS.

vii
 ARGUMENTS ADVANCED

A). CLUBBING OF PETITIONS BEFORE THE HIGH COURT AND APPEAL BEFORE THE

SUPREME COURT
In the present matter, the Supreme Court has decided to club the petition pending before the
High Court with the appeal pending in the Supreme Court. It should be noted that the Supreme
Court has the jurisdiction to do so under Art. 139A.

To facilitate the quick disposal of the cases, Article 139A(1) provides that if cases involving
substantially the same question of law are pending before the Supreme Court and a High Court,
or before two or more High Courts, the Supreme Court can withdraw the cases from the High
Courts and decide them itself. Once the common issue of law is decided, the case may be
returned to the High Court under the Provision to Article 139A(1) to decide individual cases in
light of the law so laid down.1

The question involved in the cases should be “substantial” and of “general importance” 2,
however where an issue between the parties being decided by the Supreme Court is also subject
matter of the proceeding between the same parties in the High Court, transfer of all proceedings
to the Supreme Court was also directed.3 To transfer the matter to the Supreme Court, an
application may be made by the one of the party to such case or the attorney General of India or
the Supreme Court may do so on its own motion also.4

In the present matter, there are two writ petitions before the Kerala High Court, one filed by the
father of the deceased seeking proper direction to the police to investigate the matter as to
punishment given to his daughter and her death as a result thereafter. Second petition in the High
Court was also filed by the father of deceased to quash the proceeding initiated on the complaint
of the school principle for culpable homicide. Lastly third appeal has been filed by Renuka
Shenoy, President of Students’ Parliament seeking medical treatment to the deceased. Though
the deceased has died during the pendency of the appeal and petitions, however since the

1
Gnaneshwar B Pettukota v Govt of India, (2005) 12 SCC 447
2
LK Venkat v Union of India, AIR 2012 SC 2503
3
International Financial Corporation v Bihar State Industrial Development Corporation, (2005) 10 SCC 179
4
Article 139A (1) of The Constitution of India

1
petitions and appeal involve the same facts and issues to decide, the Supreme Court under its
jurisdiction under Article 139A can club the cases together and decide the case accordingly.

B). THE DOCTOR ON DUTY WAS NOT LIABLE FOR GOING AGAINST THE WILL OF THE

DECEASED BY PERFORMING BLOOD TRANSFUSION.

Traditionally, where young children are concerned, the power to give or withhold consent to
medical treatment on their behalf lies with those with parental responsibility. Legally, except in
an emergency, parental consent is necessary to perform any medical procedure on a child. Two
commonly used arguments when parents refuse treatment are parental rights to raise children as
they see fit5 and religious freedom.’6

For the absence of a fitting Indian precedent, western commonwealth jurisprudence has to be
relied upon in the case-a-hand. Courts throughout the western world recognise parental rights,
but these rights are not absolute.7 Parental rights to raise children are qualified by a duty to
ensure their health, safety, and wellbeing.8

I. POSITION IN USA
In the USA, the Free Exercise Clause of the First Amendment is relied on by parents when
defending their right to refuse blood on their children’s behalf. This defence is rarely successful:9
the freedom to believe is absolute; the right to act on that belief is not.10 In American courts there
is no doubt: the child’s welfare is paramount.

The first JW case,11 concerning parental treatment refusal, to reach the US Supreme Court,
challenged two statutes commonly used to declare children wards of court in order to administer
blood, and sought a court order to prevent Washington physicians administering blood to JW
patients. The Supreme Court was clear in its upholding of the decision in Prince explaining, “the

5
Meyer v Nebraska 262 US 390 (1923)
6
In re Seithfert 127 NE.2d 820 (NY 1955), In re Green 292 A.2d 387 (Pa. 1972).
7
Newmark v Williams 588 A.2d 1108 (Del. 1991)
8
CHILDREN AND YOUNG PERSONS ACT 1933, Sections (1) and (2)(a) but liability here is not as a parent but as a
person over 16 having the “custody, charge, or care” of a child under 16.
9
Lingle EA. Treating children by faith: colliding constitutional issues. J LEGAL MED 1996;17:301–6.
10
Reynolds v United States 98 US 145, 166 (1878)
11
Jehovah’s Witnesses v King County Hospital 278 F. Supp. 488.

2
right to practice religion freely does not include liberty to expose…the child…to ill health or
death”. 12

The majority of subsequent cases13 have maintained the trend, reiterating the views of earlier
cases and emphasizing three main points:

 The child’s interests and those of the state outweigh parental rights to refuse medical
treatment14
 Parental rights do not give parents life and death authority over their children
 Parents do not have an absolute right to refuse medical treatment for their children
based on their religious beliefs.15

II. POSITION IN UK
Well established in British law, is the fundamental principle that every person’s body is
inviolate.16 Traditionally, under British law, while regarding the child’s welfare as paramount,17
courts respect parental wishes concerning children’s medical treatment. 18 Parents have the right
and the duty to give proxy consent, where required, for a minor.19 Some argue that when parents
refuse treatment, any procedure is an assault on the child. 20 However, as parental rights and
duties are not absolute,21 existing only for the child’s best interests, the court, ultimately, has
overriding control.

Gillick v West Norfolk (“Gillick”) held that, if a child under 16 could demonstrate sufficient
understanding and intelligence to understand fully the treatment proposed they could give their
consent to treatment. If they failed this competency test, parental consent is required.
Unfortunately, treatment refusal was not considered. However, this case did specify the

12
Wash. Rev. Code 1 13.04.010(12), 1 13.04.095 (1961).
13
In re Sampson 317 N.Y.S.2d 641 (NY Fain. C. 1970); Muhlenberg Hospital v Patterson 320 A.2d 518 (NJ Sup.
C., Law D. 1974); In Interest of Ivey 318 So.2d 53 (FL D.C. of A., 1 Dist 1975).
14
Custody of a Minor 375 Mass. 733, 379 N.E.2d 1053 (1978).
15
Jacobson v. Massachusetts 197 U.S. 11 (1905).
16
Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, 72E.
17
In Re B (A Minor)(Wardship: Medical Treatment) 1 WLR 1421 (1981).
18
Re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1.
19
Gillick v West Norfolk AHA [1986] 1 AC 12.
20
Re R (A Minor)(Wardship: Consent to Treatment) [1992] Fam. 11.
21
Supra.note 14.

3
limitations of parental rights: “parental rights are derived from parental duty…exist only so long
as they are needed for the protection of…the child”.

The logical inference from Gillick is that competent children are competent to both accept and
refuse treatment; yet subsequent decisions suggest that a child’s refusal may be overridden by a
proxy’s consent to that treatment and that the child’s refusal, while important, may not be
conclusive, further strengthening our pleadings.

In the present matter, since there is no precedent for this issue so following the principles laid
down in case of USA and UK jurisdiction the parental rights have to give way to the medical
care of incompetent persons as is evident from the fact of Sameera’s disparate behaviour in the
hospital (different reactions) re-enforces her immaturity and thus, State should have stepped into
the shoes of Sameera and taken life-saving decision, unlike the religious faith of the deceased’s
father which is again in conflict with the mother’s decision, therefore no uniform parental right
emanates from the facts of the instant case.

C). THE SCHOOL PRINCIPAL IS LIABLE FOR THE CORPORAL PUNISHMENT GIVEN TO

SAMIRA.

I. NO SPECIFIC LAW DEALING WITH THE CORPORAL PUNISHMENT OF STUDENT IN SCHOOLS.

All forms of corporal punishment including sexual abuse are harmful to the child. Currently,
there is no statutory definition of corporal punishment of children in Indian law. Definition of
corporal punishment can at best only be indicative. In keeping with the provisions of the RTE
Act, 2009, corporal punishment could be classified as physical punishment, mental harassment
and discrimination.22

Physical punishment is understood as any action that causes pain, hurt/injury and discomfort to a
child, however light, e.g. Detention in the classroom, library, toilet or any closed space in the
school. Similarly Mental harassment is understood as any non-physical treatment that is
detrimental to the academic and psychological well-being of a child for example calling names
and scolding using humiliating adjectives, intimidation. Discrimination is understood as

22
Guidelines for eliminating Corporal Punishment In Schools, issued by National Commission for Protection of
Child Rights(NCPCR); Available at http://www.ncpcr.gov.in/view_file.php?fid=108

4
prejudiced views and behavior towards any child because of her/his caste/gender, occupation or
region and non-payment of fees.23

II. INTERNATIONAL LAW ON CORPORAL PUNISHMENT

The United Nations Committee on the Rights of the Child [“UNCRC”] defines corporal
punishment as follows:

“Any punishment in which physical force is used and intended to cause some degree of pain or
discomfort however light it might be. Most involves hitting (“smacking”, “slapping”,
“spanking”) children, with the hand or with an implement – a whip, stick, belt, shoe, wooden
spoon, etc. But it can also involve, for example, kicking, shaking or throwing children,
scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in
uncomfortable positions, burning, scalding or forced ingestion (for example, washing children’s
mouths out with soap or forcing them to swallow hot spices).24

Article 37(a) of UN CRC requires States Parties to ensure that “no child shall be subjected to
torture or other cruel, inhuman or degrading treatment or punishment”.

This is complemented by Article 19(1) of the Convention, which requires States to– “Take all
appropriate legislative, administrative, social and educational measures to protect the child from
all forms of physical or mental violence, injury or abuse, neglect or negligent treatment,
maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal
guardian(s) or any other person who has the care of the child.”

III. OTHER RELEVANT PROVISIONS IN INDIAN LAW

a) Constitution of India –
Article 21 of the Constitution of India which protects the right to life and dignity includes the
right to education for children up to 14 years of age. Corporal punishment amounts to abuse and
militates against the freedom and dignity of a child. It also interferes with a child’s right to

23
Ibid
24
Committee on the Rights of the Child, General Comment No. 8, ‘The right of the child to protection from corporal
punishment and other cruel or degrading forms of punishment’ (Arts. 19; 28, Para 2; and 37, inter alia) (42nd
session, 2006), UN Doc. CRC/C/GC/8 (2006).

5
education because fear of corporal punishment makes children more likely to avoid school or to
drop out altogether. Hence, corporal punishment is violative of the right to life with dignity.25

Article 21A of the Constitution provides that “the State shall provide free and compulsory
education to all children of the age of six to fourteen years in such manner as the State may, by
law, determine.” This fundamental right has been actualised with the enactment of Right of
Children to Free and Compulsory Education Act, 2009. Further the Directive Principles of State
Policy in the Indian Constitution directs the State to work progressively to ensure that “… the
tender age of children are not abused”26 Article 39(f) directs the State to work progressively to
ensure that “children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.”

b) Indian Penal Code –

Several provisions of the Indian Penal Code (IPC) relating to varying degrees of physical harm
and intimidation can be used to prosecute perpetrators of corporal punishment against children in
an institutional setting. These include section 305 of the IPC which provides for the Abetment of
suicide committed by the child.

Till recently, the provisions of Sections 88 and 89 of the IPC were invoked to explain the power
teachers exercised when inflicting corporal punishment. These two provisions in the chapter on
‘General Exceptions’ cover harms that may be caused without penal consequence. Section 88
exempts an act from being treated as an offence when the harm was caused “to any person for
whose benefit it is done in good faith”. Section 89 exempts acts “done in good faith for the
benefit of a person under 12 years of age ... by or by consent, either express or implied, of the
guardian or other person having lawful charge of that person.”

However, contrary to Sections 88 and 89 of the IPC, the Gujarat High Court in its judgement
Hasmukhbhai Gokaldas Shah v. State of Gujarat27, 17 November 2008, has clearly stated that
“corporal punishment to child in present days ... is not recognised by law”. Further, India is a
State Party to the Convention on the Rights of the Child. The standard of ‘the best interests of the

25
Unnikrishnan v State of Andhra Pradesh, (1993) 1 SCC
26
Article 39(e) of the Indian Constitution
27
Hasmukhbhai Gokaldas Shah v. State of Gujarat; 2008 SCC Online Guj 293

6
child’ is now a part of domestic law. In 2006, the Committee on the Rights of the Child
explained this obligation further when it reiterated, in General Comment No. 8, “the right of the
child to protection from corporal punishment and other cruel or degrading forms of punishment”

In theory, corporal punishment is covered by all the provisions under Indian law that punishes
perpetrators of physical harm. While these provisions make no distinction between adults and
children, in practice, corporal punishment in schools and other institutions tends not to be
prosecuted because it is widely accepted socially and regarded as legitimate. So the provisions
highlighted in this section, the criminal provisions in particular, have the potential to be used in
situations of corporal punishment, but rarely are.

c) Right to Education Act, 2009

The Right of Children to Free and Compulsory Education (RTE) Act, 2009, ‘physical
punishment’ and ‘mental harassment’ under Section 17(1) and makes it a punishable offence.28

Furthermore, the RTE Act does not preclude the application of other legislation that relates to the
violations of the rights of the child, for example, booking the offenses under the IPC and the SC
and ST Prevention of Atrocities Act of 1989.

d) The Juvenile Justice (Care & Protection of Children) Act, 2003

This act criminalizes acts that may cause a child mental or physical suffering. It states –

“Whoever, having the actual charge of, or control over, a juvenile or the child, assaults,
abandons, exposes or wilfully neglects the juvenile or causes or procures him to be assaulted,
abandoned, exposed or neglected in a manner likely to cause such juvenile or the child
unnecessary mental or physical suffering shall be punishable with imprisonment for a term
which may extend to six months, or fine, or with both.29”

This provision covers the actions of anyone who has “actual charge or control over” a child.
While it is likely to be applied most often to personnel in childcare institutions regulated by the
JJ Act, it arguably applies to cruelty by anyone in a position of authority over a child, which
would include parents, guardians, teachers and employers.

28
Section 17(2) of The RTE Act, 2009
29
Section 23 of The Juvenile Justice (Care and Protection of Children) Act, 2000

7
These provisions justify legal reforms that will impose criminal liability on parents or teachers
and other adults who cause injury through violence and use corporal punishment. There must be
a clear law and policy to curb domestic violence and battery of child by parents. Parents and
teachers are legally accountable for violence and abuse of authority. However there is a need to
spell this liability in clear terms of law for more certainty. As far as this case is concerned,
though it is clear that the principal made the deceased stand for two hours which worsen the
health of the deceased, however to impose the criminal liability malice on the part of the teacher
is required. Negligence and unreasonableness can replace malice and make him liable in certain
circumstances, for causing simple injury or grave injury under Indian Penal Code.

The Supreme Court has ruled that teacher, who caned the students and inflicted fist blows,
causing bodily injury and loss of tooth, would be criminally liable and would not be benefited for
having acted in good faith for the benefit of the victim.30 If teacher exceeds the authority and
inflicts unreasonable punishment he would lose the benefit of Section 88 of IPC which protects
acts done in good faith.31 In the present case it cannot be said that the principal had the element
of malice while she/he slapped the deceased however he was negligent and for that the liability
under tort can be imposed not the criminal liability.

D). SAMIRA HAD RIGHT TO REFUSE MEDICAL TREATMENT ON GROUND OF HER RELIGIOUS
BELIEFS.

There is no special law in India dealing with the issue of refusal of medical assistance on
religious grounds. Therefore practices in other countries and Indian constitutional provisions
should be referred to.

I. POSITION IN US
How the courts in US decide such cases depends on factors such as whether the patient is an
adult or minor, competent or incapacitated, or the chief provider for minor dependents. 32 Many
cases in which courts have been asked to order medical treatment have involved patients who
refused to give consent based upon religious beliefs. Some of the most common involve those
whose religious beliefs forbid transfusions or any blood products or by-products. When faced

30
State v. H.A. Khandkar; AIR 1998 SC 3281
31
Ganesh Chandra Shaha v. Jinraj Somani; 1965 CriLJ 24
32
Fay Rozovsky, Consent to Treatment: A Practical Guide, p.440

8
with patients in need of surgery requiring blood, doctors have turned to the courts to try and
overcome a patient's refusal to consent to a transfusion.

The basic legal premise for compelling treatment in this country rests on a court-made distinction
between religious beliefs and practices. The 1879 U.S. Supreme Court case of Reynolds v. U.S.33
which involved polygamous marriage practices set a precedent that, while guaranteeing the free
exercise of religious beliefs, permits the state in certain circumstances to limit religious practices.
Generally, when the state can demonstrate a compelling interest in the preservation or promotion
of health, life, safety, or welfare religious practices may be curtailed.

Over the years, court decisions and legislative enactments have developed laws concerning
parents who refuse medical treatment for their children. Different approaches have developed for
life-saving treatments versus elective measures. Several states have passed laws recognizing the
right of patients, including minors to decline treatment that conflicts with their religious beliefs
and practices.

The other basis for court intervention is the state's “parens patriae” power—parents are presumed
at law to provide for the necessities of life required by their children. If a parent fails in this, such
as by refusing to provide the child with necessary medical care, the state may step in to protect
the child and get the necessary care.34

However in a recent judgment the Supreme Court held that “The issuance of an injunction
authorizing the hospital to administer a blood transfusion to the defendant violated her common
law right of bodily self-determination; the hospital's interest in protecting its patients did not
extend to the defendant's baby, whose health was not in danger, and, as compelling as the
hospital's interest in preserving life and upholding the ethical integrity of the medical profession
might be, those interests were not sufficient to take priority over the defendant's common law
right to bodily integrity as long as she was sufficiently informed of the consequences of her
decision, was competent to make such a decision, and freely chose to refuse the blood
transfusion.”35

33
Reynolds v. U.S. (98 US 145)
34
Refusal of Medical Treatment on Religious Grounds by John Kasparek; Available at
https://www.cga.ct.gov/PS99/rpt/olr/htm/99-R-0180.htm (Last visited on September 22nd 2018)
35
Stamford Hospital v. Vega, (236 Conn. 646 (1996)

9
 II. POSITION IN UK
The case of Re T (Adult: refusal of medical treatment)36 is the law of land in UK as far as the
question of refusal of medical treatment by a patient on religious ground in concerned. The court
of appeal in this case ruled that Prima facie every adult has the right and capacity to decide
whether or not he will accept medical treatment, even if a refusal may risk permanent injury to
his health or even lead to premature death. Furthermore, it matters not whether the reasons for
the refusal were rational or irrational, unknown or even non-existent. This is so notwithstanding
the very strong public interest in preserving the life and health of all citizens. However, the
presumption of capacity to decide, which stems from the fact that the patient is an adult, is
rebuttable.

An adult patient may be deprived of his capacity to decide either by long-term mental incapacity
or retarded development or by temporary factors such as unconsciousness or confusion or the
effects of fatigue, shock, pain or drugs. f an adult patient did not have the capacity to decide at
the time of the purported refusal and still does not have that capacity, it is the duty of the doctors
to treat him in whatever way they consider, in the exercise of their clinical judgment, to be in his
best interests.37

III. FUNDAMENTAL RIGHTS UNDER INDIAN CONSTITUTION

Article 21 of the Indian Constitution guarantees the right to life which has been interpreted to
mean right to choose and right to live with human dignity. 38 Therefore the Indian Constitution
favors the individual freedom over the state interest to save the life of an individual.

Keeping in mind the above principles, though the deceased had the right to decide whether she
wanted the blood transfusion or not, however due to her being unconscious39 she cannot be said
to have exercised the informed consent for the same and thereby the hospital medical
professionals were right in taking decisions on her behalf and doing what was right in her
interest.

36
Re T (Adult: refusal of medical treatment); [1992] 4 All ER 649
37
Ibid
38
Common Cause vs. Union of India; Supreme Court of India, Writ Petition (Civil) No. 215 of 2005 decided on
March 9th, 2018
39
Proposition at Para 7

10
 PRAYER FOR RELIEF
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities cited
it is most humbly and respectfully prayed before this Honourable Supreme Court of India at New
Delhi that it may be pleased to:

 Permit the clubbing of petitions pending before the High Court in the present matter;

 Declare that Samira was not competent to deny consent in the present case;

 Acquit Ms. Diana from the charges of inflicting culpable homicide on the deceased;

AND

Grant any other order that this Hon’ble Court may deem fit in the ends of equity, justice and
good conscience.

All of which is most humbly and respectfully submitted

Date: 24th September, 2018 Counsel No.1247A

Place: New Delhi Counsel for the Appellant

11