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[A Writ Petition, by the Petitioner i.e. Save Odisha Organization, under Article 226 of the
Constitution of India, against the scheme introduced by the State of Odisha.]
[A Writ Petition, by the Petitioner i.e. Sri Ram Kumar Rath, Article 226 of the Constitution
of India, against the violation of fundamental rights by the State Of Odisha]
In The Matter Of
TABLE OF CONTENTS
INDEX OF ABBREVIATIONS
A.C.
Appellate Cases
AIR
All ER
Anr.
Another
Bom DB
Bom
Bombay
CC
Company Cases
Ltd.
Limited
n.
Note
Ors.
Others
p.
Page
P.
Petition
Para
Paragraph
pvt
Private
P. Ltd
Private Limited
Rev
Review
SC
Supreme Court
SCC
v.
Versus
INDEX OF AUTHORITIES
STATUTES
Indian Constitution, 1950
Income Tax Act, 1961.
DICTIONARIES
1. Compact Oxford Reference Dictionary Ninth Edition.
2. Blacks Law Dictionary Ninth Edition, 2009.
Dr. U.P.D. Kesari, Administrative Law, Central Law Publications, Twentieth Edition2014.
2. Kailash Rai, Taxation Laws, Allahabad Law Agency, Ninth Edition.
3. Prof. M. P. Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa, Fifth
Edition-2009.
4. V.N. Shukla, Constitution of India, Eastern Book Company, Eleventh Edition-2008
5. Dr. J. N. Pandey, The Constitutional Law of India, Central Law Agency, Forty- sixth
Edition-2009.
6. P. K. Majumdar, R. P. Kataria, Commentary on the Constitution Of India, Orient
Publishing Company, Tenth Edition- Volume 1, 2011.
7. Durga Das Basu, Case book on Indian Constitutional Law, Kamal Law House, Second
Edition-2007.
1.
People's Union for Democratic Rights v. U.O.I AIR 1982 SC 1473: (1982)3 SCC
235.5
Rashid Ahmed v. Municipal Board, A.l.R. 1950 S.C. 163: (1950) S.C.R. 566.3
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
A Whatsapp video was circulated showing a person carrying his dead child on National
Highway No. 5 with a message regarding apathy of people of the State Government towards
its people. On account of hue and cry over the matter, the Odisha State Government directed
the collector, Cuttack to enquire into the matter and submit a report.
There were several newspaper articles flashing that the hospital authorities, having failed to
provide help after the death of the child, the father was compelled to carry the body on his
shoulders as he did not have enough money to pay for transport. There were also several
news articles highlighting violation of rights and disrespect to the departed sole besides
questioning the governance.
The news having spread across the globe, several NGOs and Charitable Organizations came
forward to help the poor man and also promised donations in his favour. The Collector
having enquired into the matter, later submitted that, the person on learning about the death
of his child, left the hospital without informing anyone.
The hospital being a Government Hospital, free facilities were available which he could have
availed by making proper application. The Collector ultimately put the blame on that person
and gave a clean chit to the hospital authorities.
The said person however, on being asked by the media, was not able to show any document
from the hospital which could prove that he had asked the hospital authorities for help before
leaving. The media and press suggested that the above press statement was coerced by top
officials and not voluntary as because, the viral video and the interviews published earlier,
showed statements contrary to the above.
The Chief Minister being targeted over the matter, finally, came out and declared that all the
monetary help that the person receives shall be tax free and the Government has decided to
introduce free transport to and from Government Hospitals.
An organization named Save Odisha, headed by a political leader belonging to one of the
Non-ruling parties, who also happens to be an advocate, approached the High Court of Orissa
challenging that providing free transport to and fro from Government Hospitals will be an
unnecessary burden on the Government as the Government already has existing schemes that
provide free ambulance, free medicine, food, etc.
On the other hand, one Sri Ram Kumar Rath, an advocate from the local bar filed a Public
Interest Litigation(PIL) claiming compensation for the said person on account of Violation of
his fundamental rights and disrespect towards citizens of the state alleging inaction by the
state besides praying for stringent actions against the erring officials. Sri Ram Kumar Rath
STATEMENT OF ISSUES
The following questions are presented before the Honble High Court in the instant matter:
ISSUE 1:Whether the cases are maintainable as laid?
ISSUE 2:Whether tax exemption granted by the Government is opposed to interests of the public and
tax payers of the state?
ISSUE 3:Whether the new Scheme introduced by the Government necessary and Constitutional?
ISSUE 4:Whether there has been any violation of any Constitutional right?
ISSUE 5:Whether the petitioners are entitled for any relief from the present petitions
SUMMARY OF ARGUMENTS
I.
It is humbly submitted before the High Court of Orissa that this petition is maintainable
under Art 226 of the Constitution wherein every High Court shall have power, throughout the
territorial limits in relation to which it exercises jurisdiction to issue any person or authority
including the appropriate cases, any Government, within those territories, directions, and
order of writs for the enforcement of fundamental rights conferred by Part III, and for any
other purpose. It is most humbly submitted that very evidently in this instant case the
fundamental rights of the victim has been infringed by the respondents.
II.
It is most humbly submitted before the Honble High Court that the interests of the public and
tax payers of the state will be hampered by the tax free monetary help given to the aggrieved
father. Further, the State failed to keep in mind the additional burden on the general public
while declaring the scheme.
III.
WHETHER THE
NEW
SCHEME
INTRODUCED
GOVERNMENT IS NECESSARY AND CONSTITUTIONAL?
BY
THE
It is most humbly stated before the Honble High Court that the new Scheme
introduced by the Government is entirely unnecessary and nor is it in accordance to any
Constitutional mandate. Yet the Government chose to waste valuable time and resources in
contriving new schemes. There are plenty of schemes providing for facilities are already
present but it continues to elude the vast majority of the poor.
IV.
BEEN
ANY
VIOLATION
OF
ANY
It is most humbly submitted that there has been tremendous violation of the Constitutional
right of the deceased child in the present case. The Petitioner humbly pleads that the right
to life as enshrined in Article 21 of the Constitution of India includes the right to health
and medical treatment. The scope of Article 21 encompasses the right to dignity even after
death. Hence it is alleged that there has been an infringement of his fundamental right to
dignity after death under the given Article.
V.
The Petitioner humbly submits that the aggrieved father is entitled to relief as there has
been a definite rupture of his fundamental rights under the Constitution of India. The
Petitioner further pleads that it is a vain thing to envision a privilege without a cure; need
of right and need of cure are equal.
It is humbly submitted before the High Court of Orissa that this petition is maintainable
under Art 226 of the Constitution wherein every High Court shall have power, throughout the
territorial limits in relation to which it exercises jurisdiction to issue any person or authority
including the appropriate cases, any Government, within those territories, directions, order of
writs- (a) for the enforcement of fundamental rights conferred by Part III, and (b) for any
other purpose.
It is most humbly submitted that very evidently in this instant case the fundamental rights
of the victim has been infringed by the respondents. Article 226 is couched in comprehensive
phraseology and it confers a wide power on the High Court to remedy injustice wherever it is
found.1
In the instant case the respondents have failed to perform their duties and as a result of
their negligence/lack of care a great harm has been caused to the victim. The gut wrenching
image of a father carrying his dead child on his shoulders has shaken the society and has
brought the deprivation and hopelessness of poor people into focus.
The rule of law requires to be played for the poor and ignorant who constitute a large bulk
of humanity in this country and the court must uphold the basic human rights of weaker
sections of the society.2
When an aggrieved party or any public spirited individual or social action group, discovers
that the executive is remiss in discharging its obligation under the Constitution, because of
which the poor and the under privileged are subjected to exploitation and injustice, the Courts
must compel the execution to carry out its constitutional and legal obligations and ensure that
the deprived and vulnerable sections of the community are no longer subjected to exploitation
or injustice and they are able to realise their social and economic rights.3
11
S.P. Gupta and others v. President of India and others, AIR 1982 SC 149
(1992) 4 SCC 305
13
Ashok Kumar v. State of W.B. (Supra); People's Union for Democratic Rights v. U.O.I AIR 1982 SC 1473:
(1982)3 SCC 235
14
Bandhua Mukti Morcha v U.O.I (1984)3 SCC 161; AIR 1984 SC 802
15
George Matthew v. Union of India (1997)10 SCC 537
16
Forum for Fact Finding Documentation and Advocacy, Raipur v. State of Chattisgar, 2006 Cri LJ
4372(Chhat)
17
Bandhua Mukti Morcha v. U.O.I (1984)3 SCC 161 : AIR 1984 SC 802 ; Gourav Jain v. U.O.I (197)8 SCC
114: AIR 1997 SC 3021
12
It is most humbly submitted before the Honble High Court that the interests of the
public and tax payers of the state will be hampered by the tax free monetary help given to the
aggrieved father. Further, the State failed to keep in mind the additional burden on the
general public while declaring the scheme.
Furthermore that in economics, the excess burden of taxation, also known as the dead
weight cost or dead weight loss of taxation, is one of the economic losses that society suffers
as the result of taxes or subsidies.
Moreover, donation can be included as an income because Sec 80 G of the Income
Tax Act states that the contributions made to certain relief funds and charitable institutions
can be claimed as a deduction under Section 80G of the Income Tax Act. All donations are
not eligible for deduction under section 80G.
The State pleads that only donations made to prescribed funds qualify as a deduction.
So impliedly it can be termed as an income, therefore in the present case a certain deduction
can be made while giving it but it cannot be completely exempted from tax because the
public at large will be affected by it.
Furthermore, the monetary help that the government is providing the main intention
behind is to prevent the public from coming up with allegations and to stop the media to
create a havoc out of this situation, they are not guilty of having committed this particular
activity and on top of that they are putting a huge burden on the public by making it tax free.
It is most humbly contended that in the case of C.W.T. Vs. Arvind Narottam18 judge
Sabyasachi Mukherji made the following significant observations:
1. Where the language of deed of settlement is plain and admits of no ambiguity
there is no scope for considerations of tax avoidance.
2. One would wish as noted by Chinnappa Reddy in Mc Dowell's case that one could
get the enthusiasm of Justice Holmes that taxes are the price of civilization and one
would like to pay that price to buy civilization. But the question which many ordinary
tax payers very often in a country of shortages (with ostentatious consumption and
18
It is most humbly stated before the Honble High Court that the new Scheme
introduced by the Government is entirely unnecessary and nor is it in accordance to any
Constitutional mandate.
It is humbly stated that the father of the child had pleaded with the hospital authorities
as he was a poor person and could not afford a vehicle to carry his childs body. Despite
repeated requests, they did not offer any help. Regardless of all his efforts to get help
regarding transport, the desperate father could not get any help from the hospital authorities.
Thus, he lifted his childs body and started walking on the National Highway No. 5.
After such an outrage, the Odisha government launched the scheme (Mahaprayan) to
transport bodies, came too late for the father of the deceased who had to carry his childs
body on his shoulder as he had no money for a hearse van. Hence the publics demand for
administrations intervention for shifting the body was not wrong.
The Petitioner humbly states that administration woke up too late when they ordered a
probe into the incident. There was no actual dearth of private vehicles for carrying bodies. A
sympathetic administration should have come forward and helped the poor tribal villager.
3.1. NUMBER OF PRE-EXISTING SCHEMES.
It has been further claimed that there were Rogi Kalyan Samitis (Patient Welfare
Committees) across the State were having ruling political party cadres as members as a result
of which the sympathetic help expected from these committees was not forthcoming for poor
people like the father of the deceased. Some NGOs like Badhte Kadam provide cheaper
ambulance services, but owing to limited number of vehicles, the facility eludes the vast
majority of the poor.
It is most humbly stated that, from the time a mother conceives to performing of last
rites, the state has schemes for every occasion. But those schemes were envisaged to garner
popular votes. The objectives of these schemes get defeated due to poor implementation.19
This latest scheme was launched keeping in view the Harischandra Yojana, under which
19
Statement made by Biswapriya Kanungo, human rights activist, who is taking up the issue of dignity of dead
bodies with the State Human Rights Commission. http://m.thehindu.com/news/national/other-states/afteroutrage-odisha-government-launches-scheme-to-transport-bodies/article9032633.ece Deccan Herald logo,
Thursday 3 November 2016, News Updated at 05:11 AM IST
20
http://www.newindianexpress.com/states/odisha/2016/aug/25/Government-launches-Mahaprayan-schemedraws-criticism-1512942--1.html
21
State Of Himachal Pradesh & Anr vs Umed Ram Sharma & Ors on 11 February, 1986 Equivalent citations:
1986 AIR 847, 1986 SCR (1) 251
22
Central Inland Water Transport Corporation v Brojo Nath Ganguly (1986) 3 CC 156. See also Lingappa
Pochanna Appelar v. State of Maharashtra (1985) 1 SCC 479.
23
See e.g. Air India Statutory Corpn v. United Labour Union, (1977) 9 CC 377: AIR 1997 SC 645.
24
Sukhnandan Thakur v. State of Bihar AIR 1957 Pat 617.
25
1981 1 SCC 246..
26
http://m.hindustantimes.com/india-news/day-after-man-carries-wife-s-body-on-shoulder-odisha-govtlaunches-mahaprayan-scheme/story-0ajL8dq4fN3AjuLKREWIDK.html
27
http://www.dnaindia.com/india/report-no-dignity-in-death-dead-tribal-woman-s-body-transported-on-trolleyrickshaw-after-ambulance-leaves-midway-2256934
It is most humbly submitted that there has been tremendous violation of the
Constitutional right of the deceased child in the present case. The Petitioner humbly pleads
that the right to life as enshrined in Article 21 of the Constitution of India includes the right to
health and medical treatment.28 The scope of Article 21 encompasses the right to dignity even
after death. Hence it is alleged that there has been an infringement of this fundamental right
to dignity after death under the given Article.
4.1. RIGHTS OF DEAD PERSONS.
In this instance it is most humbly submitted that the right of the person in question is a
dead child. A person has not been defined under Article 21. However Section 3 (42) of the
General Clauses Act defines a person to include any company or association or body of
individuals, whether incorporated or not. Such a person would be a legal entity that is
recognized by law as subject of rights and duties.29
The Indian Penal Code defines a person in Section 11 to include any company or
association or body of persons whether incorporated or not. A person defined in Tomlins'
Law Dictionary as man or woman; also the state or condition, whereby one man differs from
another. A person in law may be either natural or artificial.
However the Petitioner wishes to rely on the following case. The High Court of
Allahabad has enunciated the legal rights of dead persons in the case of Ramji Singh @
Mujeeb Bhai v. State of Uttar Pradesh that;
The word person may not be construed narrowly so as to exclude the dead body of a
human being, who was the person, when alive, which is not claimed and which is
required to be cremated or buried with dignity in accordance with the religious
beliefs of the person, if such beliefs can be found by establishing his identity.
The State is obliged in law both under its powers as a welfare state, and to protect the
rights of such person in its extended meaning under Art.21 of the Constitution of India
for disposal of a dead body for a decent and dignified cremation/ burial in
accordance with the religion beliefs the man kept or professed.
28
29
Sharma MK, right to Health and Medical Care as a Fundamental Right AIR 2005, p. 255.
http://legalperspectives.blogspot.in/2010/01/do-dead-people-have-rights.html
30
1995(3) SCC 248 : 1995 SCC (Cri) 464: 1997 (35) ACrC 560: 1995 (2) ECrC 165: 1995 Cri L. R. 367. Para4.
Dalip Kumar Jha and Ors. vs. State of Punjab and Ors. CWP No. 7345 of 2014.
32
W.P. (MD) No. 3888 of 2007.
31
33
"Washington V. John T. Rhines Co." National Association of Personal Injury Lawyers. 2005. 10 Mar. 2008.
It was in Rudul Shah V State of Bihar (AIR 1983 SC 1086) in which the Supreme Court for the first
time set up an important landmark in Indian Human Rights Jurisprudence by articulating compensatory
relief for infraction of Article 21. Since then the court started awarding monetary compensation as and
when the conscience of the court was shocked.
35
AIR 1998 Journal 154
36
Vincent Pani Kurlnagara Vs. Union of India1987 AIR 1990; 1987 CR (2) 468
37
Andrew Fulton Philip, Medical Negligence Law Seeking a Balance, 1st edition, 1997, Dartmonth
Publishing Compnay, Vermount (USA) p. 14.
38
C.E.S.C. Limited vs. Subash Chandra Bose. Ram Biharilal vs. Shrivastava AIR 1985 MP 150
39
State of Rajasthan Vs. Vidyavati(1996) 2 SCC 634; (1996) 4 CTJ 950 (SC) State of Haryana vs. Santra 2000
CTJ 481 (SC); 1 (2000) CPJ 53 (SC).
40
Blyth v. Birmingham Water Works Co. (1856) 11 Ex. 781 cited in W.H.V. Rogers, M.A., Winfield and
Jolowicz on Tort International Student Edition, Sweet & Maxwell, 1998 p. 171 Laxman Balakrishna Joshi v.
Trimbak Babu Godbole (1969) 1 S.C.R. 206.
41
White v. Jones [1995] 2 A.C. 207
34
Chapter III, Section 12 (f) of The Protection of Human Rights Act, 1993.
Bandhua Mukti Morcha v. Union of India (AIR 1984 SC 802).
44
State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.
45
Paschim Banga Khet Mazdoor Samity v. State of West Bengal (AIR 1996 SC 2426 at 2429 para 9).
46
State of Punjab v. Ram Lubhaya Bagga (1998) 4 SCC 117.
47
Kapil Sibal, The Hindustan Times, New Delhi, May 4 2001.
43
48
The Petitioner humbly submits that the aggrieved father is entitled to relief as there
has been a definite rupture of his fundamental rights under the Constitution of India. The
Petitioner further pleads that it is a vain thing to envision a privilege without a cure; need of
right and need of cure are equal.49 Such a claim is made keeping in mind the doctrine of ubi
jus ibi remedium.
Moreover unless there is effective machinery for the enforcement of the rights, the
declaration of the Fundamental rights is meaningless. It is a remedy which makes the right
real. If there is no remedy there is no right at all.50 In this case the wrongs against the poor
father ought not to remain unredressed. Reparations in light of misfortune, should be aptly
made by the State Government in the form of compensation.
Furthermore, the power of the court to grant such remedial relief may include the
power to award compensation in appropriate cases. The Court has clarified that the
appropriate cases in Railway Board v. Chandrima Das,51 are those cases where the
infringement of fundamental right is gross and patent that is incontrovertible and ex facie
glaring and appears unjust or unduly harsh or oppressive on account of poverty or disability
or socially or economically disadvantaged position.
Consequently when the Court moulds the relief in proceedings under Article 226 of
the Constitution seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalizing the wrongdoer and fixing
the liability for the public wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizens.52
In the case of Nilabati Behera v. State of Orissa, Justice Verma has stated;
If the guarantee that deprivation of life and personal liberty cannot be made except
in accordance with law is to be real, the enforcement of the right in case of every
contravention must also be possible in the Constitutional scheme, mode of redress
being that which is appropriate in the facts of each case. This remedy in public law
49
Nilabati Behera v. State of Orissa, AIR 1993 SC 1960. Para 19 of the decision.
Bhagwati, J. observed in Khatri (II) v. State of Bihar (1981) 1 SCC 627
55
AIR 1978 SC 597.
56
D. K. Basu v. State of West Bengal 1997 1 SCC 416
57
M.C. Mehta v. Union of India AIR 1987 SC 1087.
58
(1978) 2 All ER 670
54
Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Honble High Court, to adjudge and
declare that:
1. The scheme introducing free transport to and fro from Government Hospital be
declared invalid.
2. That stringent action be taken against the erring official of the State Government for
their inaction.
3. The aggrieved father be granted compensation for the violation of his Fundamental
Right and of his child.
The court may also be pleased to pass any other order, which this Honble Court may deem
fit in light of justice, equity and good conscience.