MOOT PROBLEM

a) India, officially the Republic of India  is a country in South Asia. It is the seventh-

largest country by area, the second-most populous country, and the most
populous democracy in the world. Bounded by the Indian Ocean on the south,
the Arabian Sea on the southwest, and the Bay of Bengal on the southeast, it shares
land borders with Pakistan to the west; China, Nepal, and Bhutan to the north;
and Bangladesh and Myanmar to the east. In the Indian Ocean, India is in the vicinity
of Sri Lanka and the Maldives; its Andaman and Nicobar Islands share a maritime
border with Thailand, Myanmar and Indonesia.

b) India is the world's most populous democracy. A parliamentary republic with a multi-

party system, it has eight recognised national parties, including the Indian National
Congress and the Bharatiya Janata Party (BJP), and more than 40 regional parties.
The Congress is considered centre-left in Indian political culture, and the BJP right-
wing. For most of the period between 1950—when India first became a republic—and
the late 1980s, the Congress held a majority in the parliament. Since then, however, it
has increasingly shared the political stage with the BJP, as well as with powerful
regional parties which have often forced the creation of multi-party coalition
governments at the centre

c) India is a federation with a parliamentary system governed under the Constitution of

India—the country's supreme legal document. It is a constitutional republic
and representative democracy, in which "majority rule is tempered by minority
rights protected by law". Federalism in India defines the power distribution between
the union and the states. The Constitution of India, which came into effect on 26
January 1950, originally stated India to be a "sovereign, democratic republic;" this
characterisation was amended in 1971 to "a sovereign, socialist, secular, democratic
republic". India's form of government, traditionally described as "quasi-federal" with
a strong centre and weak states, has grown increasingly federal since the late 1990s as
a result of political, economic, and social changes

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d) Well being and health of a person are considered to be two personal matters, but it is
then, when we or the person close to us fall ill that we recognize that Health is in fact
a public issue and there is the chronic importance of rights in relation to health in our
day today life. Access to quality health is not only a human need, a right of citizenship
and a public good, but it is also a prerequisite to good health, which is essential to
enjoy and achieve fruits of equitable development.

e) While the right to health would be the ultimate aim, the right to health care would be a
first step, a tangible and feasible demand of today’s society. The term health is quite
difficult to define as such. It may mean different things to different people. A right to
health implies that everyone has the guarantee of perfect health.
f) WHO defines a Health as, “Health does not mean merely physical health or the
absence of disease, disability or infirmity. It is a state of complete physical, mental,
emotional, social, and spiritual well being of both of the individual and of the nation.”
Every woman, man, youth and child has the human rights to the highest attainable
standard of physical and mental health without discrimination of any kind. Enjoyment
of the human right to health is vital to all aspects of a person’s life and well being and
is crucial to the realization of many other fundamental rights and freedoms. A strict
understanding of a right to health implies, somewhat absurdly, that everyone has the
guarantee of perfect health.
g) Theo Boven, then Director of the UN Division of Human Right stated that, “Three
aspects of the right to health have been enshrined in the unemotional instruments on
human rights, the declaration of the right to health as a basic human right; the
prescription of standards aimed at meeting the health needs of specific groups of
persons; and the prescriptions of ways and means for implementing the right to
health.”
h) The term, therefore, tends to be used for the sake of convenience and implies a
reasonable as opposed to an absolute standard. Article 12 of the ‘International
Covenant on Economic, Social and Cultural Rights’ (ICESCR) defines the right to
health as ‘the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health. The right to health includes the right to health care; it goes
beyond health care to encompass the underlying determinants of health, such as safe
drinking water, adequate sanitation and access to health-related information. The right
includes freedoms, such as the right to be free from discrimination and involuntary

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 medical treatment. It also includes entitlements, such as the right to essential primary
health care. The right has numerous elements, including child health, eternal health
and access to essential drugs. Like other human rights, it has a particular concern for
the disadvantaged, the vulnerable and those living in poverty. The right requires an
effective inclusive health system of good quality.’
i) The World Health Organization uses a holistic definition of Health according to
which “health does not merely consist of the absence of disease or handicaps but
refers to the highest attainable standard of physical, mental and social well being.”
While this definition is more inclusive and allows various aspects of life to be taken
into account in health issues, this wide understanding of health can be a double-edged
sword. On the one hand, it appears to avoid restricted, paternalist of imperialist
interpretations of the concept, but on the other hand, it leaves plenty of room for
relativist interpretations of what is to be included in health and what it means to be
Healthy. After all, even when we think about Health merely in terms of lack of
disease of handicap, there might be differences in interpretations of its meaning across
cultural, national and generational borders. The right to health can be viewed as
having two basic components: a right to health care, and a right condition. It should
not be seen as a girth to be healthy. The state cannot be expected to provide people
with protection against every possible cause of ill health or disability nor should the
right to health be seen as a limitless right to receive medical care for any and every
illness or disability that may be contracted. Instead, the right to health should be
understood as a right to the enjoyment of a variety of facilities and conditions which
the state is responsible for providing as being necessary for the attainment and
maintenance of good health.
j) Protection and promotion of ‘Right to health of the HIV/AIDS patients’ has been one
of the felt needs of the welfare society like India. Right to health and availability of
qualitative health services are issues that are relevant all over the world. Hence, these
issues also form topics of debate at various international levels. The United Nations,
in particular, has been active in adopting various resolutions to safeguard the interests
of individuals in ensuring their health and well-being.
k) The International Covenant on Economic, Social and Cultural Rights, 1966, the
International Covenant on Civil and Political Rights 1966, the UN Declaration on
Elimination of All Forms of Discrimination Against Women 1967, the Convention on
the Elimination of All Forms of Discrimination Against Women 1979 and the

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 Convention on the Rights of the Child have all been framed to protect apart from
others the health care rights of women, children and other discriminated sections of
the society. For more than fifty years, the World Health Organization has been
playing a laudable role at the international level with a view to ensure the availability
of the highest standards of health care to people all over the world. Several
international agencies have also lent support to public participation in health care.
l) Health and health care have been covered both under the Constitution of India and in
different legislation. The Constitution does not explicitly recognise right to health as a
fundamental right. Similarly, different legislative enactments passed with regard to
health and health care deal more with the regulatory aspects rather than the right to
health. It can be interpreted that these statutes recognise right to health in a given
context in an indirect sense.
m) Indian economy has undergone a vast change and the functions of state have been
changed from laissez fare to welfare state. Due to change in the functions of the state
the state has promoted globalization privatization and liberalization. Along with this
the private sector has undergone a boom. Along with the same this has given a rise to
many social problems therefore along with the other increasing problems health has
become a major issue in that regard. Protection of health is a fundamental right
guaranteed under article 21 of Indian constitution. Though health is a basic right
guaranteed under the constitution but still some people are not even able to get basic
health facilities in the rural areas they are not able to take advantage of the schemes
enacted for the same.
n) Medical negligence has become a bar to the same people are not getting medical
facilities good medical conditions also along with the same medical negligence is the
thing which creates bar to the same. In India many people nowadays are dying due to
the medical negligence. The medical negligence laws are falling short in giving
justice to the families of the persons suffered the loss. The law also provides very less
compensation for the same. There are some provisions in the consumer protection Act
as well as the civil laws (law of torts) but they are not sufficient.
o) Very recently there is medical negligence seen in the cases of covid-19 as well as the
HIV patients. Covid-19/ corona virus is a deadly disease it is spreading day by day.
The government is being negligent in treating the corona patient’s cases. The one
global problem that has shaken the human race regardless of the religions, region,

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 races, gender and language is the well-known disease ‘Acquired Immunodeficiency
Syndrome’ (AIDS) the cause of which is Human Immunodeficiency Virus (HIV).
p) The plaintiff, Mr. X suffered serious head injuries and brain haemorrhage after falling
off a train. He was turned away by various hospitals because the hospitals had
inadequate medical facilities or did not have a vacant bed to accommodate him.
Consequently, he had to seek treatment at a private hospital and incurred costly
expenditure for it. He went to DERLY’s Private Medical Hospital in Pune and while
getting the treatment, he was inflicted with an injection. Unfortunately, the injection
was wrongly administered to him as the nurse by mistake gave the injection which
had to be given to the AIDS patient.
q) As a result of this, he incurred a greater medical injury and had to be hospitalised for
more than 3 months. The hospital bill which was incurred by him was around Rs 70
lakh rupees. Mr. X has now approached directly the Supreme court of India directly
claiming that the State was negligent in provising him Right to health.

The writ petition came to be admitted by the Supreme Court of India, which decided to hear
the matter and framed the following questions for consideration:

1. Whether the Supreme Court of India has the jurisdiction?

2. Whether the hospital DERLY’s Private Medical Hospital was liable for medical
negligence?
3. Whether Right to Health of Mr. X is violated?

PLEASE NOTE:

1. The Participants are expected to limit their submissions only to the issues framed by
the Supreme Court.
2. The Laws of India, including the judgments delivered by Supreme Court of India and
various High Courts of India. However all ‘Common Law’ Precedents including the
judgements of Supreme Court of India and various High Courts of India would have
equal persuasive value.
3. The participants are expected to bring to the court’s attention the relevant
jurisprudence. It may include judgements and opinions delivered by Courts of
Common Law Nations

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