Ba:r & Bench (,ench.com)nexus with the issue(s) involved in the Public Interest Litigation. YES (Kindly See Page No. of PIL Petition) (Kindly see para 5 at page 3 ) (Kindly see para

ANNEXURE – Y

ADVOCATE’S CHECK LIST TO BE CERTIFIED BY ADVOCATE-ON-RECORD

Indicate

Yes or NA

1. SLP (C) has been filed in Form No. 28 with

certificate

NA

2. The Petition is as per the provision of Orders XV

Rule 1.

Yes

3. The papers of SLP have been arranged as per

Order XXI, Rule (3) (1) (f).

NA

4. Brief list of dates/events has been filed. Yes

5. Paragraphs and pages of paper books have

been numbered consecutively and correctly

noted in Index.

Yes

6. Proper and required numbers of paper books

(1+1) have been filed.

Yes

7. The contents of the petition, applications and

accompanying documents are clear, legible and

typed in double space on one side of the paper.

Yes

8. The particulars of the impugned judgment

passed by the Court(s) below are uniformly

PILten in all the documents.

NA

9. In case of Appeal by certificate the Appeal is

accompanied by judgment and decree appealed

from and order granting certificate.

NA

10. If the petition is time barred, application for

condonation of delay mentioning the no. of days

of delay, with affidavit and Court fee has been

filed.

NA

11. The Annexures referred to in the petition are true

copies of the documents before the Court(s)

Yes

Ba:r & Bench (www.barandb,ench.com)

below and are filed in chronological order as per

List of Dates.

12. The Annexures referred to in the petition are

filed and indexed separately and not marked

collectively.

Yes

13. The relevant provisions of the Constitution,

statues, ordinances, rules, regulations, bye laws,

orders etc, referred to in the impugned judgment

order has been filed as Appendix to the SLP

NA

14. In SLP against the order passed in Second

Appeal, copies of the orders passed by the Trial

Court and First Appellate Court have been filed.

NA

15. The complete listing Proforma has been filed in

signed and included in the paper books.

Yes

16. In a petition (PIL) filed under Clause (d) of Rule

12(1) Order XXXVIII, the Petitioner has

disclosed:

g) his full name, complete postal address, e-

mail address, phone number, proof, regarding

personal identification, occupation and annual

income, PAN number and National Unique

Identity Card number, if any;

h) the facts constituting the cause of action;

j) the nature of injury caused or likely to be

caused to the public;

k) details regarding any civil, criminal or revenue

litigation, involving the Petition or any of the

Petitioners, which has or could have a legal

nexus with the issue(s) involved in the Public

Interest Litigation.

YES

(Kindly See

Page No. of

PIL Petition)

(Kindly see

para 5 at

page 3 )

(Kindly see

para 1 & 2 at

page 2 )

(Kindly see

at para 8 at

Page 15)


17. If any identical matter is pending/disposed of by

the Hon’ble Supreme Court, the complete

particulars of such matters have been given.

Yes

18. The statement in terms of the order XIX Rule 3

(1) of Supreme Court Rules 2013 has been

given in the petition of Appeal.

Yes

19. Whether a Bank Draft of Rs. 50,000/- or 50% of

the amount, whichever is less, has been

deposited by the person intending to Appeal, if

required to be paid as per the order of the

NCDRC, in terms of Section 23 of the consumer

Protection Act, 1986.

NA

20. In case of appeals under Armed Forces Tribunal

Act, 2007, the Petitioners/appellant has moved

before the Armed Forces Tribunal for granting

certificate for leave to Appeal to the Supreme

Court.

NA

21. All the paper books to be filed after curing the

defects shall be in order.

Yes

I hereby declare that I have personally verified the petition and its contents and it

is conformity with the Supreme Court Rules, 2013. I certify that the above requirements of

this Check List have been complied with. I further certify that all the documents necessary

for the purpose of hearing of the matter have been filed.

Signature…………………………….

Advocate-on-Record Name: (KAMLENDRA MISHRA)

AOR for petitioner

Code No.1367

Email- [email protected]

Contact No.9811404903

New Delhi

Dated: 17-02-2020

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

PIL PETITION (C) NO. OF 2020

(Public Interest Litigation)

(Under Article 32 of the constitution of India)

IN THE MATTER OF: Michel F. Saldanha (Justice Retd.) & Anr. ...Petitioners


VERSUS

Union of India & Anr. ...Respondent

PAPER BOOK

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: KAMLENDRA MISHRA

INDEX S.

N.

Particulars of documents Page no. of part to

which it belongs

Remark

Part 1 Part 2

(i) (ii) (iii) (iv) (v)

Court Fees

1 Listing proforma A-A1 A-A1

2 Cover Page of Paper book A-2

3 Index of record of proceedings A-3

4. PIL Proforma A-4

5 Defect List A5-A

6 Note Sheet NS1

to…


7. Synopsis and List of Dates

8 PIL Petition with Affidavit

10. ANNEXURE P1

A true copy of the Aadhar

Card of the 1st Petitioner.

12 ANNEXURE P2

A true copy of the PAN card

of the 1st Petitioner bearing

no: AMBPS9257N

13. ANNEXURE P3

A true copy of the Aadhar

Card of the 2nd Petitioner.

14. ANNEXURE P4

A true copy of the PAN card

of the 2nd Petitioner bearing

no: BYGPS9684B.

15. FILING MEMO

16. VAKALATNAMA WITH MEMO OF

APPEARANCE

PROFORMA FOR FIRST LISTING SECTION-X

The case pertains to (Please tick/check the correct box):

Central Act (Title) Constitution of India

Articles NA

Central Rule:(Title) NA

Rule No(s):_NA____________________

State Act (Title) NA

Section: NA______________________

State Rule :(Title) NA________

Rule No(s): NA Impugned Order: NA

High Court: PIL Petition (PIL) Under Article 32 of the

Constitution of India

Names of Judges: NA

Tribunal/Authority :(Name

1. Nature of Matter: Civil Criminal


(a)Petitioner No.1: Michel F. Saldanha (Justice Retd.)

b) E-mail ID: [email protected]

(c) Mobile phone number: NA____

3. (a) Respondent No.1:Union of India

(b) E-mail ID: NA__

(c) Mobile phone number: NA

4. (a)Maincategoryclassification:

(b) Sub classification:_

5. Not to be listed before: NA____

6. (a) Similar disposed of matter with citation, if any, & case details : No

similar matter is disposed

(b) Similar pending matter with case details: no similar matter is pending

7. Criminal Matter:

(a) Whether accused/convict has surrendered: Yes No

b) FIR No._____NA____________Date NA________

(c) Police Station: NA_______________________

(d) Sentence Awarded: NA________________

(e)Sentence Undergone: NA_____________________

8. Land Acquisition Matters:

(a) Date of Section 4 notification: NA__________

(b) Date of Section 6 notification: NA__________

(c) Date of Section 17 notification: NA________

9. Tax Matters: State the tax effect: NA____________

10. Special Category (first petitioner/appellant only):

Senior citizen> 65years SC/ST Woman/child

Disabled Legal Aid case In custody

11. Vehicle Number (in case of Motor Accident Claim matters): NA

(KAMLENDRA MISHRA)

AOR for petitioner

Code No.1367

Email- [email protected]

Date: 17-02-2020


SYNOPSIS

The 1st Petitioner before this Hon’ble Court was a Constitutional

Functionary, who retired as a Judge of the Hon’ble Bombay High Court

on 13th February 2004, and is seeking the indulgence of this Highest

Court. The 2nd and 3rd Petitioners before this Hon’ble Court are a

practicing Advocate from the State of Karnataka and the President of

PUCL, Mangalore which is an organisation dedicated to the

safeguarding and enforcement of personal rights of citizens apart from

taking up various progressives causes in the public interest.

The rape incident of Nirbhaya which transpired in December

2012 had shook the conscience of the entire Nation, leaving no soul

untouched by the brutality and gravity of which the crime had been

committed by the 4 Accused, whose Death Penalty had been

confirmed by this Hon’ble Court recently.

However, the case of the Petitioners herein is that the Accused

men who are about to be hanged in accordance with law, may also be

given a final chance of contrition in the form of their organs being

donated, which would not only unrest and undo the wrong that has

been committed, but would also aid a human being in dire need of an

organ transplant. The 1st Petitioner during his tenure as an incumbent

Constitutional Functionary and as a Sitting Judge of the States of

Maharashtra and Karnataka, had on few occasions while confirming

the death sentence, had also used to direct that the prisoner should be


given the option of donating the body to medical research but more

importantly, that the organs such as the eyes, kidneys, liver, heart etc.

which are healthy can be provided as a lease of life to deserving cases.

The precedent for the instant PIL Petition arose many years back

before the 1st Petitioner when he was an incumbent Constitutional

Functionary of the Hon’ble Bombay High Court where a prisoner

requested to be kept present during the hearing of his Criminal Appeal

and when the Court confirmed his sentence, he had admitted that he

does not desire to appeal further because he felt that after committing

a brutal triple murder that the punishment accorded to him was

deserved, but his request was that he would like to donate the organs

and that the Government and the Jail Authorities were directed to take

note of this, in furtherance of which medical teams were kept present

and the moment execution took place and the prisoner was

pronounced to be clinically dead, the organs were immediately taken

and preserved, and the report indicated that all of them were used in

deserving cases.

The Policy prevailing in India regarding organ donations are

purely voluntary in nature and there is no scope of compulsory or

mandatory donations, which has resulted in an acute shortage of vital

organs not only for donation purposes, but also for purposes of

research. To the contrary, countries in Asia like China, Singapore,

France & Taiwan have been permitting the practice of organ

transplantation from prisoners who have been executed. The

underlying jurisprudence in adopting such practice is that an Accused


who had committed a crime should have a right to donate his organs

and create a positive contribution in turn to the society, as an act of

remorse.

Although the status of capital punishment is an independent

question with about 69 countries in the World still favouring and

retaining death penalty, including India, it is completely fathomable and

within the purview of the Judiciary and Executive to formulate policy

and legal safeguards qua the said practice. Furthermore, public trust

in organ donation & transplantation process is based on the belief that

the distribution of organs is conducted with complete fairness.

While this being the scenario of organ donation with regard to

death penalty prisoners, developed Economies across the globe like

Singapore, Belgium and Spain have been comparatively facing less

shortage of organs, in view of their sound policy of making Organ

Donation impliedly compulsory for all citizens, by propounding that all

of its citizens would be liable by default to donate their organs post their

death, unless otherwise they expressly opt out of the organ donation

scheme, thereby producing a good number of organ donors, which was

because of their pragmatic Policy and approach.

Significantly, lack of Policies in India qua organ donation have

been the prime cause of deaths due to shortage of organs, which can

be rectified by adopting sound policies from Singaporean and Spanish

Governments, even though not applicable to the all citizens by default,

at least to the extent of such accused who have been penalized with

death for heinous crimes, as the manner of retrieval of organs from


such accused post their death, will not result in any prejudice, and at

the same time would also serve as an compunction.

At the same time, States like Delhi, Maharashtra, Jammu &

Kashmir, Kerala, Tamil Nadu, etc have their respective State

Legislations of the Anatomy Act, which provides for the supply of

unclaimed bodies of deceased persons to hospitals and medical

institutions for purposes of dissection & organ transplantation, as

discernible from the Long Title of the Acts. The Acts provide for an

unclaimed body to be used for the aforesaid purpose, by the authority

of a hospital or prison shall report the same to an institution.

Thus on a broader reflection of the afore discussed facets of

organ donation qua death convicts, the following emerge for

consideration:

- Allowing death penalty prisoners to make living donations if

they are willing and healthy

- Regardless of the cause of death, dead prisoners should be

able to donate

- Proper approaches with envisaged safeguards to protect the

rights of everyone involved

- A panel to decide the authenticity of donations made by death

penalty convicts

The submission of the Petitioners is that the approach adopted

by neighboring countries of conceiving Organ Donation to be carried

out as an altruistic gift, ought to be adopted and recognized even in

India.


IN THE SUPREME COURT OF INDIA

[CIVIL ORIGINAL JURISDICTION]

(PUBLIC INTEREST LITIGATION)

PIL PETITION (Civil) No. _____ OF 2020

(A Petition under Article 32 of the Constitution of India praying for

a PIL or Direction that is deemed appropriate by this Hon’ble

Court, directing the Respondent Government / Jail Authorities to

offer the option to the four accused of Nirbhaya Case, for

donating their bodies for medical research and for organ

transplantation)

IN THE MATTER OF:-

1. MICHAEL F. SALDANHA

RETIRED JUSTICE

S/O. JOHN ANTHONY SALDANHA

2. DILRAJ ROHIT SEQUEIRA

S/O. LATE ROBERT SEQUEIRA,

...PETITIONERS

VERSUS

1. UNION OF INDIA

THROUGH CHIEF SECRETARY,

MINISTRY OF HOME AFFAIRS, NORTH BLOCK,


NEW DELHI-110001

2. STATE OF DELHI

THROUGH SECRETARY

HOME DEPARTMENT,

I.P. ESTATE, NEW DELHI-110001

…RESPONDENTS

PUBLIC INTERST LITIGATION PETITION UNDER ARTICLE 32 OF

THE CONSTITUTION OF INDIA FOR DIRECTING THE

RESPONDENT GOVERNMENT/ JAIL AUTHORITIES TO OFFER

THE OPTION TO THE FOUR ACCUSED OF NIRBHAYA CASE FOR

DONATING THEIR BODIES FOR MEDICAL RESEARCH AND

ORGAN TRANSPLANTATION.

TO

THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE

SUPREME COURT OF INDIA

THE HUMBLE PETITION OF THE

PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. The Petitioners are filing the instant PIL Petition under Article 32

of the Indian Constitution, for issuance of a PIL or direction that

is deemed fit and appropriate by this Hon’ble Court, directing the

Respondent Government / Jail Authorities to offer the option to


the four accused of Nirbhaya Case, for donating their bodies for

medical research and for organ transplantation.


mailto:[email protected]

mailto:[email protected]

3. FACTS OF THE CASE

The brief facts that give rise to this Public Interest Litigation

are as follows:

i. The Petitioners before this Hon’ble Court have been

constrained to file this instant PIL Petition on the basis of

the fact that when the 1st Petitioner had been an incumbent

constitutional functionary, had while disposing of a Criminal

Appeal by confirming the sentence, the accused who had

been present in the Court had conceded that he does not

desire to appeal due to his remorse, and had further

contended that he would like to donate the organs as a

mark of contrition and positive impact.

ii. Furthermore, while this being just one instance of several

cases, the prisoners who have been convicted for death

penalty, ought to be granted an opportunity for their organs

to be donated after their execution and for their bodies to

be used for medical research purposes as desirable by

medical and educational institutions. Such an option for

death convicts would render them to create a positive

impact even after their death, apart from helping a person

in need of a vital organ via transplantation. Added to all


these, Countries across the globe have been

comparatively adopting a pragmatic approach qua the

same, as such organ donations by a death convict is further

giving him/ her a chance of cleansing the wrong which has

been committed by them.

iii. Under the above circumstances petitioner is left with no

other efficacious alternative remedy than to invoke the

constitutional remedy under Article 32 of the Constitution

of India in this petition before this Hon’ble Court on the

following among other.

GROUNDS

(A) BECAUSE the Petitioner has been constrained to invoke the PIL

jurisdiction of this Hon’ble Court by filing the instant Public

Interest Litigation under Article 32 of the Indian Constitution, as

the instant matter at hand calls for the interference of this Hon’ble

Court

(B) BECAUSE the fact that a heinous crime has been committed by

the accused and that they have been penalised by a death

penalty can also be in the form of a penitence by rendering them

donate their organs for a noble cause, thereby renewing the life

of another human being in an indirect way.

(C) BECAUSE the death penalty that has been imposed on the

accused, would only serve as a punishment for the wrong that

has been committed. But rendering them an opportunity to


donate their organs would serve them a reformative chance to

undo the wrong by serving someone’s life that is in dire need of

an organ transplant.

(D) BECAUSE the act of donation by a death convict would help in

renewal of life to another person, especially in a Nation like India

where there are thousands of patients in the waiting list for an

organ to be transplanted, and the same process being furthered

by a death penalty convict would save the life of a person in need,

thereby leading to an indirect living even after his death.

(E) BECUASE the developed economies have been formulating

sound policies regarding organ donation by making its populace

donate their organs after their death by default, unless an

individual expressly opts out of such donation, thereby serving

the immediate needs of its medical community, without any

violation of public policy.

(F) BECAUSE the 1st Petitioner respectfully places before this

Hon’ble Court the fact that in a large number of cases in the city

of Mangalore, persons direct that their body should go to medical

research as it is getting extremely difficult to find corpses even

for the medical college, but more importantly, because it is

extremely difficult to find organ donors. The Petitioner No. 1

submits that there is a young woman by the name of Deepa

Fernandes suffering from kidney failure who is undergoing

dialysis three times a week, and who is critically in need of a

kidney donor and is now been put on a list of cadaver transplants


whose life could be saved if a healthy kidney is available. The 1st

Petitioners respectfully desires to place before this Hon’ble Court

the fact that even in the case of his mother who passed away in

the hospital, the family had agreed to donate the eyes, that the

corneas were immediately removed and these were implanted

into two poor farmers who had been blind since birth. The next

day after the funeral the doctors pointed out to the persons

present that these two poor persons could now see for the first

time in their lives.

(G) BECAUSE the four accused in the Nirbhaya case have

exhausted all legal remedies available and that they are likely to

be executed. The limited prayer to this Hon’ble Court is that the

Government / Jail Authorities may be instructed to offer the

option to the four prisoners to donate their organs to deserving

persons. The Petitioners most respectfully submit that normally

the bodies are handed over to the next of kin, but that in a very

large number of cases there are no claimants or, the families

themselves do not come forward to claim the bodies for a variety

of reasons which includes the prejudice and stigma attached to

the deceased criminal. To quote one example, in the case of the

Accused of the Mumbai terror attack, Ajmal Kasab who was

executed a few years back, there were no claimants and the

body had to be disposed of by the Government. It is respectfully

submitted that in all such instances, either by default or for

whatever reason even where the bodies are handed over for


cremation / burial that the golden opportunity of reusing the

valuable organs is lost. The additional aspect of the matter is that

where the person is executed because of the extreme depravity,

abhorrence or other factors where the law justifies the taking of

life that if the Courts were to direct that necessary amendments

be made to the 100 year rules and to provide for body / organ

donation in cases of all executions that it would provide for some

atonement for the crime.

(H) BECAUSE the Petitioners respectfully submit that they are only

praying for the limited direction that the option be held out to the

four accused in the Nirbhaya Case that they should agree to

donate their organs / bodies to medical research and secondly,

that this Hon’ble Court be pleased to examine the

reasonableness / desirability of directing that this step be

followed in the case of all executions.

(I) The Petitioners respectfully submit that this is a fit case in which

this Hon’ble Court in exercise of its inherent powers be pleased

to issue directions for this procedure to be followed in the

Nirbhaya Case and that the wider aspects of the Petition and the

desirability of making this as a condition precedent in the case of

all executions be examined and appropriate directions be issued.

4. That Through this PIL, the Petitioner is enforcing his Right to Life

under Article 21 of the Constitution of India.


5. That the Petitioners have not filed any other or similar Petition

before this Hon’ble Court or any other Court for similar relief as

prayed for in the present PIL Petition.

6. That no other civil, criminal or revenue litigation involving

petitioners herein, which has or could have any legal nexus with

the issues involved in this petition, is pending before any court or

Forum.

PRAYER

In the light of the above mentioned facts and circumstances, it is most

respectfully prayed before this Hon’ble court that it may be pleased to:-

a) Issue a PIL or direction in any form which may deem fit and

appropriate, directing the Respondent Government / Jail

Authorities to offer the option to the four accused of Nirbhaya

Case, for donating their bodies for medical research and for

organ retrieval, with immediate steps to be taken to remove and

preserve the eyes, kidneys, liver, heart and such other organs

that are capable of reuse.

b) Issue directions in public interest qua larger aspect of making

necessary amendments being made to the Prison Rules to

provide for the aforesaid procedure be followed in all executions.

c) Issue any other PIL, order or direction in favour of the Petitioner

as this Hon’ble court may deem fit and proper in the

circumstances of the case.


For which act of kindness, the petitioner, shall ever as in

duty bound pray.

Drawn by: Filed By:-

Manoj V George KM Vignesh Ram (KAMLENDRA MISHRA)

Advocate for the Petitioners

Place : New Delhi Dated: 17/02/2020


Documents

Ba:r & Bench (,ench.com)nexus with the issue(s) involved in the Public Interest Litigation. YES (Kindly See Page No. of PIL Petition) (Kindly see para 5 at page 3 ) (Kindly see para