Moot memorial on constitutional law moot court competition, Summaries of Law

Download Moot memorial on constitutional law moot court competition and more Summaries Law in PDF only on Docsity! i DUMCS-TIB Anti-Corruption Moot Court Competition 2019 IN THE SUPREME COURT OF BICHITROPUR HIGH COURT DIVISION (Writ Jurisdiction) In the Matter of Corruption and the legality of Production Sharing Contract & the first-come-first-serve policy United We Stand (UWS) Versus Republic of Bichitropur MEMORIAL FOR APPLICANT AC-25A ii TABLE OF CONTENTS TABLE OF CONTENTS.......................................................................................................... (ii) LIST OF ABBREVIATIONS…………………………………………………………....…… (v) LIST OF AUTHORITIES....................................................................................................... (vi) STATEMENT OF JURISDICTION.................................................................................. .... (xi) STATEMENT OF RELEVANT FACTS............................................................................... (xii) QUESTIONS PRESENTED................................................................................................ (xviii) SUMMARY OF ARGUMENTS............................................................................................ (xix) ARGUMENTS 1. The writ is maintainable……………………………………………………… (1) A. That the remedy of writ is available against the Respondents…………………………. (1) B. That United We Stand (UWS) is an aggrieved party…………………………………... (2) 2. The delaying of investigation by police is a violation of the Constitution of Bichitropur and is an infringement of fundamental rights of the citizens…. (3) A. That delay in investigation violates the right to speedy trial as guaranteed in the constitution……………………………………………………………………………... (3) B. That delay in investigation violates the right to life and personal liberty as guaranteed in the constitution…………………………………………………………………………. (4) C. That delay in investigation violates the due process of law as guaranteed in the constitution……………………………………………………………………………... (4) D. That delay in investigation in this case is against the public interest………………..…. (5) E. That delay in investigation in this case resulted in “State-Created Danger.”………….. (7) v LIST OF ABBREVIATIONS AD Appellate Division BLT Bangladesh Law Times AIR All India Reporter HCD High Court Divison ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights MLR Mainstream Law Reports PSC Production Sharing Contract SC Supreme Court vi LIST OF AUTHORITIES Legislations Constitution of the Republic of Bichitropur………………………………..……… (1, 2, 3, 8, 11) Prevention of Repression of Women and Children Act, 2000………………………………..…(7) The Arms Act, 1878……………………………………………………………………………..(7) The Speedy Trial Tribunal Act, 2002…………………………………………………………....(7) International Conventions International Covenant on Economic, Social and Cultural Rights Dec. 16, 1966, 993 U.N.T.S. 3, 5 (1976)………………………………………………………………………………………… (3) International Covenant on Civil and Political Rights, December 19, 1966, 999 U.N.T.S. 171, 173 (1976)…………………………………………………………………………………………. (16) Domestic Cases Abdul Mannan Khan v. Bangladesh 64 DLR (AD) (2012) 169…………………………….... (11) Adv Zulhas Uddin Ahmed & Manzil Morshed v. Bangladesh 15 MLR (HCD) 2010……..… (17) Aftabuddin v Bangladesh, (1996) 48 DLR 1……………………………………………….… (12) Chowdhury Mahmud Hossain v. Bangladesh 22 BLD (HCD) 459........................................... (2) Cho Wen Chang and others V. SF Winsome Fashion Ltd65 DLR (2013) 584………………. (10) Dhaka City Corporation v. Firoza Begum 65 DLR (AD) (2013) 145………………………... (12) Golam Mustafa v. Bangladesh 2007 (XV) BLT (HCD)............................................................ (14) Jibendra Kishore v. Province of East Pakistan 9 DLR SC 21……………………………….... (13) Md. Ali Akbar vs. The State 4 (1999) MLR (HCD) 87……………………………………...… (5) Metro makers & Developers Ltd v BELA 65 DLR (AD) 181……………………………...… (10) Sheikh Abdus Sabur v. Returning Officer (1989) 41 DLR (AD) 30…………………………. (13) vii Syed Salahuddin Ahmed v. Government of Bangladesh 59 DLR (HCD) (2007) 388………… (9) Tarik Hussain vs Dulari Begum 65 DLR (2013) 59…………………………………………… (2) Tayazuddin and another vs. The State, 21 (2001) BLD (HCD) 503………………………...…. (6) Foreign Cases Abdul Rehman Antulay and Others v. R.S Nayak and Another Writ Petition (Crl.) Nos. 268 Of 1987………………………………………………………………………………………….. (3, 4) Associated Provincial Pictures House Ltd v Wednesbury Corp[1948] 1 KB 223……………. (14) Barker v. Wingo (1971) 407 US 514………………………………………………………...… (5) Blackburn v. Attorney General 1972 1WLR 1037…………………………………………….. (2) Bowers vs DeVito 686 F.2d 616 (7 th Circuit 1982) 618…………………………………….…. (7) D.A.V. College v. Punjab AIR 1971 SC 1731…………………………………………………. (2) Dilawar vs State of Haryana., M.A. NO.267 OF 2017 IN SLP (CRL.) NO.657 OF 2017…….. (5) E.P. Royappa v. T.N. AIR 1974 SC 555……………………………………………………… (12) Francis Coralie v. Union of Delhi AIR 1981 SC 746………………………………………… (16) Ganesh Narayan vs. S.Bangarappa(1995) 4 SCC 41……………………………………...…… (6) Hema v. State, (2013) 10 SCC 192…………………………………………………………….. (4) Hindustan Vegetable Oils Corporation v. A.P. Paracer (2000) 10 SCC 41………………...… (10) Hussainara Khatoon v. Home Secretary, State of Bihar, 1980 1 SCC 81…………………...…. (4) Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 454 (1892).................................................. (10) Imtiyaz Ahmad v. State Of Uttar Pradesh And Others Slps (Crl.) Nos. 1581-89 Of 2009......... (6) Katar Singh v. State of Punjab1994 SCC (3) 569, JT 1994 (2) 423, 1994 SCALE 1………….. (4) Kochuni v. Madras AIR 1959 SC 725…………………………………………………………. (2) Machander v. State of Hyderabad 1955 2 SCR 524…………………………………………… (5) Madheshwardhari Singh AndAnr. vsState Of Bihar on 11 July, 1986……………………….... (6) x Richard Baker and Vanessa Taylor, 'The Right to Health: A Right on the Rise' (2013) 19 J Juris....................................................................................................................... ......... (16) Sparer, The Legal Right to Health Care.- Public Policy and Equal Access, 6 HASTING CENTER REP. 39-47 (1976)........................................................................................... (16) Tamara Friesen, 'The Right to Health Care' (2001) 9 Health LJ 205……………………….… (16) Tom H Christoffel, 'Right to Health Protection' (1978) 6 Black Law Journal………………... (17) Miscellaneous Documents Black‟s Law Dictionary, Henry Campbell Black, Revised Fourth Edition, By the publisher‟s Editorial Staff, ST. PAUL, MINN. WEST PUBLISHING CO. 1968....................................... (12) Brief of Law Professor, Amicus Group at 21, Alec L. v. Gina McCarthy, No. 13-5192 (D.C. Cir. Nov. 12, 2013)................................................................................................................ (10) Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, Report No.239 Submitted to the Supreme Court of India in W P (C) NO. 341/2004, Virender Kumar Ohri Vs. Union of India & Others.............................................................................. (6) Government Contracts' (1869) Vol 4 American Law Rev No. 1………………………………. (9) Revised Statutes of Arizona Territory.Containing also the Laws Passed by the Twenty-first Legislative Assembly, the Constitution of the United States, the Organic Law of Arizona and the Amendments of Congress Relating Thereto. Columbia, MO, Press of E.W. Stephens............. (11) Statement by President Jimmy Carter, Nov. I1, 1977, as quoted in 7 THE NATION'S HEALTH 9 (1977)...................................................................................................................................... (17) UN Office of the High Commissioner for Human Rights/World Health Organization, Fact Sheet No. 31, The Right to Health, June 2008, No. 31, 7 http://www.refworld.org/docid/48625a742.html [accessed 23 November, 2019]................... (17) xi STATEMENT OF JURISDICTION The Hon‟ble High Court Division of Supreme Court of BICHITROPUR has the jurisdiction to hear and adjudicate this writ under article 102 (1) of the Constitution of BICHITROPUR which provides that High Court Division has the jurisdiction to give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, for the enforcement of any the fundamental rights conferred by Part III of the Constitution. Again, the High Court Division, under article 102 (2) can make any orderdirecting a person performing any functions in connection with the affairs of the Republic or of a local authority to do that which he is required by law to do. xii STATEMENT OF RELEVANT FACTS Republic of Bichitropur A multiracial developing country enriched with natural resources which has been independent since 1959 after 200 years colonial domination. Mid-eighties (1980s) The ruling party of Bichitropur, Bichitropur Multiracial Coalition Party (BMCP), which played a major role in decolonization process, fell from power following an upsurge after an era of ruling. There was allegation of corruption in different sectors of the country against BMCP. 1989 Following the upsurge, four new political party were formed in Bichitropur, namely - Bichitropur Democratic Party (BDP), Peoples Party of Bichitropur (PPB), Socialist Party of Bichitropur (SPB), Bichitropur Labour party (BLP) and they participated in the new national election. PPB formed the government with absolute majority and BDP came out as the main opposition. The new government faced difficulties in dealing with corruption left behind by the previous govt. So, Prime minister Viru Massa brought several changes to fight the corruption The leader of the opposition ThiruMohanda criticized the Prime Minister, alleging that he himself was engaged in corruption and the reforms were nothing but eyewash.. xv statutory body adopted a First Come First Serve Policy for allocating the gas fields for 15 years. The First Come First Serve policy had no sound Criteria as to how the policy will work and how the leases will be allocated. The policy was only in favour of a few top leader and the relatives of the Director General. 29 th June Mr.Sagui held a press conference categorically denying all the allegations brought against him and his government. On the contrary, he alleged that Mr.Mohanda approached him earlier to grant the lease to Trans Oil, another MNC. He also stated that he had reasons to believe that Mr.Mohanda was making illegal gains from Trans Oil in exchange of using his influence to secure the deal for them. 5 th and 6 th July, 2005 An influential daily newspaper named The Morning Tribune published a photograph showing Mr Sagui entering the Chase where Mr.Coldhalm the CEO of Ninetas had a room booked. On the next day in an interview MR, Mahanda talked about the claims by Tara Sagui where he mentioned about state sponsored micro level corruption. 14 th August, 2005 Another report was published alleging Mr Sagui of taking a sports Car and cash as bribe from Ninentas. 27 th August, 2005 A NGO named Organza published a report about corruption against the government in the health sector. They alleged Rigor Mortis‟ getting the tenders during the owner‟s political party‟s tenure and also named it as a macro level instance of corruption. Furthermore, the NGO conducted its investigation in more than xvi 37 state-run hospitals its Annual Report revealed that in the supervision and management sector, huge sums of bribes are received and given. January, 2010 BSP came to power and ACC was recognized. Corruption case was initiated against top leader of both PPB and BDP including Mr. Massa; Mr Mohanda And Mr.Sagui. ACC alleged all three leaders of taking bribe from MNC to grant the deals. 2015 National election was held after overthrowing BSP from power by a joint movement of PPB and BDP.PPB came in power and worked in furtherance of anti-corruption movement. Bureau of Investigation raided the Chase and seized currency and two notebooks. The seized documents contained detailed accounts of vast payments made to persons that could be identified only by initials. The initials corresponded to the initials of various high ranking politicians, both in power and out of power, and of high ranking bureaucrats, diplomats, former and present ministers. But even after having substantial evidences of Corruption nothing was subsequently done in the aftermath and the incriminating documents including the notebooks were sent to stay in cold storage. The opposition political party alleged that the local police, hitherto charged with investigation, were lax in filing reports against the accused, and that constant interference from their political masters, the state government, had blocked the investigation. 2018 In an independent probe conducted by Uttorpur in their domestic xvii jurisdiction, Ninentas admitted that it bribed a Minister of Bichitropur to get the deal. 2 nd November, 2019 This writ petition was filed with the High Court Divison, by a public spirited NGO named United We Stand (UWS). xx IV. The First-come-first-serve basis having no sound criteria is arbitrary and is a violation of the constitution. As the policy fails to pass the test of reasonable classification and Wednesbury reasonableness, it doesn‟t fall under the exception of equality clause and being arbitrary, it is a violation of article 27 of the constitution. V. Even after having ample evidences regarding the corruption in the health sector, the inaction of the state has violated the right to life and right to equality of the masses of Bichitrpur. Although right to health is not a fundamental right, but the inaction of the government has contributed towards violation of fundamental rights of the citizens of Bichitropur. 1 ARGUMENTS 1. The writ is maintainable. At the outset, it is respectfully submitted before the Hon‟ble Court that the writ filed by United We Stand (UWS), a public spirited NGO before the High Court Division of the Supreme Court of Bichitropur against the Republic of Bichitropur is maintainable. A. That the remedy of writ is available against the Respondents: The remedy of writ is available against the state and any statutory bodies and persons charged with public duties. 1 Under article 102 (1) and (2)(a)(i) of the constitution of Bichitropur, the High Court Division may give directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, for the enforcement of any the fundamental rights conferred by Part III of the Constitution and may also direct a person performing any functions in connection with the affairs of the Republic to do that which he is required by law to do. 2 In the following writ, United We Stand is trying to establish how police has made unreasonable delay in their investigation, trying to invalidate the Production sharing contract and the first- come-first serve policy, which are unconstitutional and compel the state to take measures regarding the corruption in the health sector. Thus, remedy of writ is available against the respondents to compel the state and its machineries to do their constitutional duties. 1 Sohan Lal v. Union of India, AIR 1957 SC 529 ; Praga Tools Corporation v. C.A. Imanual AIR 1969 SC 1306. 2 Constitution of the Republic of Bichitropur 2 B. That United We Stand (UWS) is an aggrieved party: Under Article-102(1) and (2) (a) (i) of the constitution of Wonderland, the remedy of writ sought by the United We Stand (UWS), is only available to an aggrieved party. 3 United We Stand has sufficient interest in the matter of dispute. The corruption and the inaction and failure of the state and its machineries (Police, Anti-Corruption Commission) have the potential to cause negative effects in the country and frustration among the people. Since it is a public injury caused to indeterminate number of people, any member of the public suffering the common injury has the right to invoke the jurisdiction under Article- 102. 4 In order to enforce fundamental rights, it is sufficient that there is a threat to infringe it 5 and UWS doesn‟t have to wait till actual infringement of rights to file the writ petition. 6 It must be remembered that lots of people who are victims of this corruption will not be able to approach the court. And constitution is not only for the benefit of government, lawyers or politicians, but it is also for the common man, for the poor and down trodden of the society. 7 In this circumstance, United We Stand being strongly concerned about the matter has locus standi 8 to file a writ and like every citizen has the interest to see that the law is properly enforced 9 and the constitutional values are uphold. 3 Ibid 4 Chowdhury Mahmud Hossain v. Bangladesh 22 BLD (HCD) 459, para 18 5 Kochuni v. Madras AIR 1959 SC 725 6 D.A.V. College v. Punjab AIR 1971 SC 1731 7 Tarik Hussain vs Dulari Begum 65 DLR (2013) 59 8 Blackburn v. Attorney General 1972 1WLR 1037 5 the state and rights of the accused. 19 But prolongation of the process has the potential to have detrimental effect on both the defence case and prosecution case. 20 The High Court Division in the case of Md. Ali Akbar vs. The State observed that “due to faulty investigation accused gets benefit of reasonable doubt in spite of consistent and uniform evidence of prosecution witnesses about the occurrence.” 21 Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution and works to the advantage of the accused. 22 Inordinate delay to complete investigation can be taken as presumptive proof of prejudice. 23 While it is incumbent on the Court to see that no guilty persons escapes, it is still more its duty to see that justice is not delayed. 24 Thus, undue advantage that is being obtained by the accused due to inordinate delay in investigation is violation of the due process of law as guaranteed in article 31 of the constitution. D. That delay in investigation in this case is against the public interest. One of the fundamental purposes of criminal justice system is to maintain a fair degree of cohesion and stability in the society. 25 People get frustrated in the system if at every stage there 19 Dr. Abdullah Al Faruque, Goals And Purposes of Criminal Justice System In Bangladesh: An Evaluation , BILIA, Bangladesh Journal of Law, Special Issue, Criminal Justice – November 2007 20 Ibid 21 4 (1999) MLR (HCD) 87 22 Barker v. Wingo (1971) 407 US 514 23 M.A. NO.267 OF 2017 IN SLP (CRL.) NO.657 OF 2017 titled Dilawar vs State of Haryana. 24 Machander v. State of Hyderabad 1955 2 SCR 524 25 Ibid 6 is delay and the process of justice is not allowed to take its normal course. 26 Any delay in investigation is not conducive to the rule of law. 27 Public interest demands that the criminal cases especially those related to serious crimes are concluded within a reasonable time so that those guilty are punished. 28 The Supreme Court of India in Ganesh Narayan vs. S. Bangarappa, 29 observed that “the slow motion becomes much slower motion when politically powerful or high and influential persons figure are accused”. As, the investigation of this particular crimes involves high officials involved in serious crimes, it becomes a priority for the police to complete the investigation in a reasonable time. In this country, where colonial jurisprudence still holds the field, it has never justified unwarranted delay in investigation and trial. 30 The Court is not only to see the right of the accused persons, but also to see the right of the victim of crime and society at large. 31 Not to mention, delay also causes substantial public expenses, 32 which is also against public interest. As the case concerned serious crimes with high officials as accused, delay in investigation stands against public interest. In State of Bihar v. Ranchi Zila Samta Party, the Supreme Court of India held that conducting investigations in a manner that instills public confidence is a matter of public interest and thus within the domain of judicial intervention. 33 As 26 Ross v. United States 349 F.2d at 211; United States v. Lovasco, 431 U.S. 783, 796-97 (1977); United States v. Marion, 404 U.S. 307, 324-25 (1471) 27 Imtiyaz Ahmad v. State Of Uttar Pradesh And Others Slps (Crl.) Nos. 1581-89 Of 2009 28 Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities, Report No.239Submitted to the Supreme Court of India in W P (C) NO. 341/2004, Virender Kumar Ohri Vs. Union of India & Others 29 (1995) 4 SCC 41 30 Madheshwardhari Singh AndAnr. vs State Of Bihar on 11 July, 1986 31 Tayazuddin and another vs. The State, 21 (2001) BLD (HCD) 503, para.26. 32 Supra Note 19 33 AIR 1996 SC 1515 7 the delay in investigation is against public interest, derogation from the constitutional provision are not allowed. So, High Court Division must adjudge that the delay in investigation in the corruption cases is against public interest and thus, a violation of the constitution. E. That delay in investigation in this case resulted in “State-Created Danger.” Many special criminal statutes have made provision for accountability of investigating officers in case of failure of completion of investigation within the time frame, 34 which is furtherance of the state‟s compliance with article 35 (3). But the police in this case, have made unreasonable delay, which has led to the creation of “state-created danger”. In order for the establishment of “state- created danger”, a plaintiff must show that the state actors increased the danger to him 35 or created the danger that caused the injury. 36 The act must be such to shock the conscience of the society. 37 Through making unjustified and unwarranted delay in investigation, the state has allowed the criminals to continue in their path of corruption and thus, resulting in more harm to the people in general. Although the doctrine of “state-created danger” was invention of the American jurisprudence to illustrate the tortuous liability of police and other state actors, the analogy of the doctrine has been shown in this case to portray that harm has been caused to the society due to the delay in investigation made by the police. And how this harm has resulted in violation of fundamental rights of the people has already been argued above. 34 Section 18(6) of the Prevention of Repression of Women and Children Act, 2000; section 15 of the Speedy Trial Tribunal Act, 2002; section 30B (6) of the Arms Act, 1878 35 Piotrowski v. City of Houston, 237 F. 3d 567 - Court of Appeals, 5th Circuit 2001 36 Bowers vs De Vito 686 F.2d 616 (7th Circuit 1982) 618 37 Ibid 10 C. That the PSC is void due to fraud. In Cho Wen Chang and others V. SF Winsome Fashion Ltd, the Court observed that when a transaction is done to secure unlawful gain, it is entirely fraudulent. 48 And fraud in a contract vitiates the whole contract. 49 In this case, fraud was committed on the citizens of Bichitropur. Although the ownership of minerals and other resources of the country have been vested with the government, 50 the government holds this resource under the doctrine of public trust. The Appellate Division in Metro makers & Developers Ltd v BELA 51 held that the government has the duty to protect natural resources for the enjoyment of general public. Due to being property that is a subject of concern to the whole people of the state, 52 being central to the well-being of the community, 53 essential to the economic health of society, 54 and a crucial natural resource,” 55 the PSC contract regarding gas will fall under the purview of doctrine of public trust. Since the contract was executed to incur personal gains, it is a fraud upon the citizens of Bichitropur. Thus, due to fraud, the PSC is void ab initio. 48 65 DLR (2013) 584 49 Ibid, Hindustan Vegetable Oils Corporation v. A.P. Paracer (2000) 10 SCC 41; United States v. Thockmorton 98 U.S. 61 50 Article 143, Constitution of the Republic of Bichitropur 51 65 DLR (AD) 181 52 Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 454 (1892) 53 Charles F. Wilkinson, The Public Trust Doctrine in Public Land Law, 14 U.C. DAVIS L.REV. 269, 315 (1980) 54 Brief of Law Professor, Amicus Group at 21, Alec L. v. Gina McCarthy, No. 13-5192 (D.C. Cir. Nov. 12, 2013) 55 Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L.Review, page 471 (1970) 11 D. That the High Court Division of Bichitropur has the authority to direct the parliament to enact a policy under article 102 (2) (1) (i) of the constitution. The High Court Division has the jurisdiction to make an order directing a person performing any functions in connection with the affairs of the Republic to do that which he is required by law to do under article 102 (2) (1) (i) of the constitution. This writ, referred as mandamus is available against parliament. 56 ABM Khairul Haque CJ in his majority judgment in Abdul Mannan Khan v. Bangladesh 57 stated that it is upon the Supreme Court to see that the government doesn‟t violate the fundamental rights of the people. The writ of mandamus may be issued by the supreme to any person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station. 58 4. Whether the first-come-first-serve policy is violative of the equality clauses of the Constitution of Bichitropur. The first-come-first-serve policy is a derogation of equality ensured by article 27 of the constitution and such derogation is not permissible under the doctrine of reasonable classification. First-come-first-serve policy cannot fall within the purview of doctrine of reasonable classification, since classification in contracts for leasing out gas fields on the basis of time instead of efficiency of the bidder is not reasonable and is arbitrary. 56 C.K. Takwani, Lectures On Administrative Law, Fifth Edition, (Lucknow, 2012), Page 36 57 64 DLR (AD) (2012) 169 58 Revised Statutes of Arizona Territory. Containing also the Laws Passed by the Twenty-first Legislative Assembly, the Constitution of the United States, the Organic Law of Arizona and the Amendments of Congress Relating Thereto. Columbia, MO, Press of E.W. Stephens 12 A. That the first-come-first-serve policy is arbitrary. To do something in "arbitrary" manner, is to do it capriciously or at pleasure, without adequate determining principle or non-rational or depending on the will alone of the authority. 59 And when the decision taken by any authority is arbitrary, the court can interfere. 60 If an action could be proved to be arbitrary, it may violate equality, 61 as “both are sworn enemies.” 62 An obvious test to check whether there has been an arbitrary decision is to see whether has been any discernible principle applied in decision making. 63 The High Court Division in Aftabuddin v Bangladesh, 64 held that if an executive of legislative act is found to be arbitrary, such act adversely “affecting a person hits at the very root of the equality clause.”It was reported that the first come first serve policy, having no sound criteria whatsoever, was at the advantage of the relatives of the DG and only a few important persons. 65 Thus, coupled with the facts, it is clear that the first-come-first serve policy being arbitrary is violation of equality clause of the constitution. 59 Black‟s Law Dictionary, Henry Campbell Black, Revised Fourth Edition, By the publisher‟s Editorial Staff, ST. PAUL, MINN. WEST PUBLISHING CO. 1968, page 134 60 Dhaka City Corporation v. Firoza Begum 65 DLR (AD) (2013) 145 61 H.M. Seeravai, Constitutional Laws of India, Volume 1, 4th Edition, page 437 62 E.P. Royappa v. T.N. AIR 1974 SC 555 63 ShrilekhaVidyarthi v. Uttar Pradesh AIR 1991 SC 537, 554 64 (1996) 48 DLR 1 65 Moot Fact, Page 3, Para 8 15 basis of time, rather than on efficiency. Thus, being an unreasonable decision, first-come-first- serve policy cannot be said to be in harmony with equality clause of the constitution. 5. The inaction of the State in dealing with corruption in the health sector results in violation of fundamental rights of the citizens. Despite of repeated allegations and ample proof of corruption in the health sector, the state has remained silent. Similar to the failure in dealing with corruption in other sectors, the state‟s inaction in taking actions against corruption in health sector has resulted in violation of fundamental rights of the citizens. A. That there are ample evidences of corruption in the health sector. The report published by Organza, titled „corruption in health sector: an undeniable reality‟ clearly speaks of Rigor Mortis‟ getting the tenders during its owner‟s political party‟s tenure. 73 The investigation of the NGO in more than 37 state-run hospitals its Annual Report reveals that in the supervision and management sector, huge sums of bribes are received and given. 74 There is clear prima facie evidence regarding the corruption in health sector. In presence of these overwhelming evidences, there is no justified excuse for the state to fold its hands. B. That inaction of the State is a violation of right to life. Right to medical care is not only a basic necessity of life or connected to the improvement of public health, but also a component of right to life. The requirement that the State "ensure" 73 Moot Fact, Page 4, Para 12 74 Ibid 16 conditions "congenial to good health" is equivalent to a right to health. 75 Health care, as it contributes to a person's ability to participate in society and the marketplace, is fundamental to human life or survival. 76 As Stated by Justice Bhagwati in Francis Coralie v. Union of Delhi, 77 right to life includes the basic necessities of life that allows a person to live with human dignity. In correlation to this spirit, medical care can be established as a legal right. 78 Even under article 12 of ICESCR 79 the state has the obligation to ensure the right of everyone to the enjoyment of the highest attainable standard of physical and mental health Justice Marshall in Memorial Hospital v. Maricopa County referred to medical care as a "basic necessity of life", stating that medical care is as much a basic necessity of life to an indigent as welfare assistance. And, governmental privileges or benefits necessary to basic sustenance have often been viewed as being of greater constitutional significance than less essential forms of governmental entitlements. 80 In Smt. Gian Kaur vs The State of Punjab, the supreme court of India expressed the view that a life with dignity is difficult to imagine when basic health care is refused. 81 Even in Bichitropur, High Court Division has found the right to decent and healthy way of life as an element of right to life guaranteed under article 32in Adv Zulhas Uddin Ahmed & Manzil 75 Richard Baker and Vanessa Taylor, 'The Right to Health: A Right on the Rise' (2013)19 J Juris 275 76 Tamara Friesen, 'The Right to Health Care' (2001) 9 Health LJ 205 77 AIR 1981 SC 746 78 Blackstone, On Health Care as a Legal Right: An Exploration of Legal and Moral Grounds, 10 GEORGIA L. REV. 341 (1976); Cantor, The Law and Poor People's Access to HealthCare, 35 LAW AND CONTEMP. PROB. 901 (1970); Carey, A Constitutional Right to Health Care.- An Unlikely Development, 23 CATH. U. L. REV. 492 (1974); Fried, Rights and Health Care-Beyond Equity and Efficiency, 293 NEW ENGLAND J. OF MED. 241 (1975); Sparer, The Legal Right to Health Care.- Public Policy and Equal Access, 6HASTING CENTER REP. 39-47 (1976) 79 International Covenant on Economic, Social and Cultural Rights Dec. 16, 1966, 993 U.N.T.S. 3, 5 (1976) 80 415 U.S. 250, 259 (1974) 81 1996 AIR 946, 1996 SCC (2) 648 17 Morshed v. Bangladesh. 82 The right to health - as well as a fundamental right of all individuals – represents an inextricable constitutional consequence of the right to life. 83 Thus, interpreting it in programmatic norm to transform it into a toothless constitutional promise 84 will be against the spirit of the constitution. A healthy body being the very foundation for all human activities, in a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. 85 Due to this it‟s vital concern for all who help shape the economic, social and political processes of the state. 86 C. That right to equality under the constitution has been violated. Article 27 of the constitution ensures equal protection of law. The Equal Protection Clause could furnish the basis for an argument that unequal access to medical care may be an unconstitutional discrimination, 87 thus violation of a fundamental right. Fact Sheet No. 3, jointly produced by WHO and the Office of the United Nations High Commissioner for Human Rights, inextricably, links non-discrimination and equality to "fundamental human rights and critical components of the right to health". 88 The Supreme Court of India, viewed violation of right to health as violation 82 15 MLR (HCD) 2010 83 RE 271.286 AgR- RS, Relator MinistroCelsode Mello, http: www.stfEgov.br (accessed 23 November, 2019). The Brazilian Supreme Federal Tribunal (SupremoTribunal Federal, "STF") 84 Ibid 85 Vincent Panikurlangara vs Union of India &Ors, 1987 SCR (2) 46, 477 86 Statement by President Jimmy Carter, Nov. I1, 1977, as quoted in 7 THE NATION'S HEALTH 9 (1977) 87 Tom H Christoffel, 'Right to Health Protection' (1978) 6 Black Law Journal, page 183 88 UN Office of the High Commissioner for Human Rights/World Health Organization, Factsheet No. 31, The Right to Health, June 2008, No. 31, 7http://www.refworld.org/docid/48625a742.html[accessed 23 November, 2019]