UNIVERSITY INSTITUTE OF LEGAL STUDIES

PROJECT SUBMISSION FOR 9TH SEMESTER,2022(GROUP A-2)

BEFORE THE

HON’BLE PUNJAB AND HARYANA HIGH COURT

W.P.(CIVIL)NO. …OF 2022

UNDER ARTICLE 226 OF THE CONSTITUION OF INDIA

IN THE MATTER OF:

SARAH………………………………………..PLAINTIFF
VERSUS
UNION OF INDIA ……………………………….DEFENDANT

UPON SUBMISSION TO THE HON’BLE JUDGES

OF THE PUNJAB AND HARYANA HIGH COURT

COUNSEL APPEARING FOR PETITIONER- BHAWNA KAUSHAL

TABLE OF CONTENTS
 STATEMENT OF FACTS

1. Sara is a 17-year-old girl resident of Mohali, who was recently diagnosed with a
rare form of blood cancer. With the present state of Medical Science, her
disease is incurable. When she found out about her condition, she was heartbroken.

2. However, she did not want to give up on life so easily. She started doing some
research and found out that there is a company in United States named Alcor life
Extension which preserves full bodies of human beings.

3. However, under present law, a person cannot be preserved cryonically while they
are alive as this would amount to murder.

4. However, Sarah is firm that this is her only way out and has approached the Punjab
and Haryana High Court to allow her to be cryonically preserved while she is still
alive as she argues that this comes under the right to bodily autonomy covered
under Article 21 of the Constitution of India.

5. Also, she argues that by being cryonically preserved she is not going to end her life
 but in effect causing her life so that she may get a chance to live later when the cure
for her disease is found. This, she argues is an extension of Article 21 right to life.

6. But unfortunately, her parents do not agree with her wishes as cryonics is a very
expensive procedure and they shall have to pay for it. Due to such huge expense,
their other children will suffer financially.

7. The parents also oppose her will to be chronically preserved on the ground that she
is a minor and cannot enter into a contract with ALCOR.

STATEMENT OF JURISDICTION

The jurisdiction of this Hon’ble Punjab & Haryana High Court has been invoked by
petitioner under Article 226 of the Constitution of India.

For ready reference the contents of Article 226, Constitution of India, are given below:-

Article 226. Power of High Courts to issue certain writs

(1)  Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any

Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose of
the application within a period of two weeks from the date on which it is received or from the
date on which the copy of such application is so furnished, whichever is later, or where the
High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid
next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause ( 2 ) of Article 32.

ISSUES RAISED

Issues pertaining to the present case are following:

A. WHETHER THIS HONOURABLE COURT HAS JURISDICTION

TO DEAL WITH THE WRIT PETITON?

B. WHETHER SARAH’S RIGHT TO BE CRYONICALLY

PRESERVED COMES UNDER RIGTH TO BODILY AUTONOMY
 UNDER ARTICLE 21?

C. WHETHER PETITIONER BEING MINOR CAN CONTRACT WITH

ALCOR?

SUMMARY OF ARGUMENTS
 I. WHETHER THIS HONOURABLE COURT HAS JURISDICTION TO DEAL
WITH THE WRIT PETITON?

It is humbly submitted that the petitioner has right to file this writ petition against State to
enforce her Fundamental Right in order to include right to cryonic preservation under the
head of right to life under Article 21.

II. WHETHER SARAH’S RIGHT TO BE CRYONICALLY PRESERVED

COMES UNDER RIGTH TO BODILY AUTONOMY UNDER ARTICLE 21?

It is humbly submitted before the Hon’ble Punjab and Haryana High Court that the Right to
Life includes Right to Bodily Autonomy and preserve the body through the procedure of
cryonics. The petitioner has approached this Hon’ble Court to extend the meaning of Article
21 of Indian Constitution to recognize Right to cryonic preservation as the procedure of
Cryonics does not cause death of any human being but rather pauses the life until a cure to
the disease is available and denial of the same infringes her right to health as guaranteed by
Article 21.

III. WHETHER PETITIONER BEING MINOR CAN CONTRACT WITH

ALCOR?

It is humbly submitted that the plaintiff being minor can enter into contract through her
parents/guardian.
 ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

1. WHETHER THIS HONOURABLE COURT HAS JURISDICTION TO

DEAL WITH THE WRIT PETITION?

1. It is humbly submitted before the Hon’ble High Court of Punjab and Haryana that this
Court has jurisdiction to entertain the Writ Petition under A. 226 of Indian
Constitution. For ready reference of the Court the relevant part of the Article 226 of
the Constitution is provided as follows:-

226. Power of High Courts to issue certain writs :- (1) Notwithstanding anything in Article
32 every High Court shall have powers, throughout the territories in relation to which it
exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III and for any other purpose

2. It is submitted that the petitioner has approached this Hon’ble Court to allow the
petitioner’s body to be cryonically preserved under the extension of Right to Life
Article 21 of Indian Constitution and accordingly the petitioner has filed this writ
petition against the Union of India to enforce and preserve her fundamental right.

3. The counsel humbly submits that the present legislations are devoid of any laws to
anchor to the clear shores in case of flood of litigations on cryonics in the future. The
petition involves an important question w.r.t legality of cryonic preservation on which
no legislation or precedence is available and decision on the present petition is
imperative for Sarah’s life and future proceedings.
 4. In the case of Aruna Shanbaug v. Union of India1, the court admitted the petition
even though no fundamental right of the petitioner was violated. While admitting the
petition it was opined that the case involved certain important issues, and require to
go deeper into the merits of the case. Drawing support from the judgement the
counsel humbly submits that in the present case lack of legislations on the subject
matter , seeking it to be the science of the future, pose threat to the rights of those,
including Sarah, who deserve a second chance to live through the process of cryonics.

5. The counsel further submits that it is in violation of petitioner’ right to medical

treatment as guaranteed under article 21 of the Constitution. The counsel for the
plaintiff draws support from the Madhya Pradesh High Court judgment 2, wherein the
court held that right to life also include the right to health

6. It is hereby submitted before this Hon’ble Court that court has jurisdiction to entertain
the Writ Petition herein.

2. WHETHER SARAH’S RIGHT TO BE CRYONICALLY PRESERVED

COMES UNDER RIGTH TO BODILY AUTONOMY UNDER
ARTICLE 21?

Right to Bodily Autonomy

1. It is humbly submitted before the Hon’ble High Court of Punjab and Haryana that
Sarah’s right to be cryonically preserved comes under her right to bodily autonomy

1
AIR2011SCC454
2
In Re(Suo Motu) v. UOI & Ors W.P. 8914/2020
 under Article 21. SC has opined that widest amplitude should be given to Article 213.

2. The counsel submits that herein, Right to bodily autonomy signifies Right to
preserve body through the procedure of cryonics. The petitioner has approached this
Hon’ble Court in order to extend the meaning of Article 21 of Indian Constitution by
including the Right to choose for body of own’s body through the procedure of
cryonics in Right to Life so as to preserve the petitioner’s body through the
procedure of cryonics.

3. It is pertinent to mention herein that, the petitioner is suffering from rare form of
Blood Cancer and even with such advancement of Medical Science, there is no cure
to her disease and after many research the petitioner found that there is this
company is United States named ALCOR Life Extension which preserves full body
of Human Beings. The petitioner has full faith in medical science and believes that
with the passage of time the Medical Science will find cure to her disease and as
such her disease will be cured and in order to wait for the cure the petitioner has to
go through procedure of Cryonics which will pause her life for while till the cure for
her disease is found.

4. It is pertinent to mention herein that the procedure of Cryonics will not end the life of
the petitioner but will pause her life for a while and in this case till cure of her disease
is found. The petitioner is suffering from a rare form of blood cancer and her disease
is incurable.

5. The counsel submits that blood cancer endangers an essential life course – our blood
cells4. It is submitted before the honourable court that blood cancer gradually disrupts
the basic unit of our body i.e. the blood cells and progressively the cancer grows out
of control disrupting the normal functioning of the body. This malfunctioning will
cause Sarah grave pain and mental torture and she will not be able to lead a normal
life. Denying pre motem preservation will prove fatal for Sarah and her right to
choose because reanimation in the future will not be possible if the cancer keeps on
multiplying and interfere with normal working of the cells. Dr. Cynthia Gorney , a

3
1978AIR597
4
https://my.clevelandclinic.org/health/diseases/22883-blood-cancer
 cryobiologist, during the course of her research, proposed that a terminal cancer
patient; should be frozen before clinical death, if it improves his chances of revival5.

6. It is further submitted that Sarah seeking Cryonic preservation wish to live a life of
dignity and not allowing her to be cryonically preserved will subject her to mental
torture and humiliation, thus violating her right to live with dignity. The Apex court
in Shabnam v. UOI6 observed that human dignity is infringed if a person’s life,
physical or mental welfare is harmed. It is in this sense that denial of this right
infringes her right to bodily autonomy.

7. The counsel seeks to draw attention of the jury to English case of JS v. M & F7
wherein a fourteen year girl, who was suffering from terminal cancer, fought a
successful legal battle in the court of law to win the right to be cryonically preserved.
Allowing the application for disposal of body via execution of will, the Hon'ble Mr.
Justice Peter Jackson opined that, despite the girl being under eighteen years of age,
she was in charge of her full mental faculties and understood the consequences of
cryonic preservation.

8. Further the counsel draws support from, Kent v. Trask8 ,wherein it was observed that
right to dispose of the body as desired by a person comes within the ambit of Right to
Privacy. In Kent v. Trask9, Judge Timlin observed that, “This court concludes that the
Adherents, including Dora Kent, under Article I, section I of the California
Constitution and the Fifth and Ninth Amendments to the United States Constitution
have a privacy right to exercise control over his/her body and to determine whether to
submit his/her body, or any portion thereof, including the brain, to pre-mortem
cryonic suspension.

9. The counsel submits on behalf of the petitioner that Right to privacy extends to the
concept of bodily integrity, the self-ownership of one’s mind and body and the
decision of choosing how one wants to function. It has been clearly mentioned by the
apex court in Justice K.S. Puttaswamy v. UOI 10
that privacy is an intrinsic part of
life, personal liberty and of the freedoms guaranteed by Part III. The right to live with
5
Kent v. Trask, 20-22 Super. Ct. Cal. (1989).
6
AIR 2015 SC 3648
7
Re JS (A Child) [2017] 4 WLR 1
8
JS v. M and F Re JS (Disposal of Body) Case No: FD16P00526 [2016] EWHC 2859 (Fam), (2016).
9
ibid
10
AIR 2017 SC 4161
 dignity includes the right to autonomy and to make decisions about one’s life choices.
It has been remarked that the best decisions on how life should be lived are entrusted
to the individual.

10. The counsel submits that Sarah has right of choice and the fundamental right under
article 21 encompasses the right of the individual to make choices and take decisions
impacting the evolution of the individual11.

11. The counsel further draws support from In Dalip Kumar Jha v. State of Punjab12,
where the Division Bench of Punjab & Haryana HC did not invade into the sacred
territory of personal beliefs and faiths when a question of disposal of a person in
Samadhi came up and allowed the body of Ashutosh Maharaj to be cryonically
preserved and ordered the government to examine the body to make sure that it
remains preserved in a good state. It is argued that this is essentially in the true spirit
of Right to Life under Article 21 of the Constitution and thus the petitioner seeks
permission to be cryonically preserved .

Right to medical treatment

It is urged before the Hon’ble Court that the process of Cryonic Preservation be viewed, not
from a perception of an act

which ends life, rather from the viewpoint of an act which is a necessary to pause life, in
order to revive life at a later time. ( Medical Treatment means examination and treatment by a
Legally Qualified Physician for a condition which first manifested itself, worsened or became
acute or had symptoms which would have prompted a reasonable person to seek diagnosis, care
or treatment.) In other words, cryonic preservation may be equated with medical

11
Justice K.S. Puttaswamy (retd) v. UOI, AIR 2017 SC 4161
12
AIR 2015 (NOC 562) 209
treatment and denial of cryonical preservation to Sarah will be interference with the
claimant's right to seek medical treatment of her choice, which is also in violation of her
Right to Bodily Autonomy.

The right to health forms an integral component of right to life enshrined under Article 21 of
the Constitution of India13.Preservation of one’s life is the necessary concomitant of the right
to life enshrined under Article 21, fundamental in nature, secured, precious and inviolable 14.
Just like Sarah, In JS v. M and F [Re JS (Disposal of Body)]15, JS, a 14-year-old girl, was
diagnosed with a rare form of cancer and was receiving palliative care. JS applied to the High
Court because her parents did not agree about what was to happen to her body . In her final
months, JS investigated cryonics: the freezing of a dead body in the hope that resuscitation
and a cure may be possible in the future. It was noted that JS's welfare could not be
adequately protected by the court refusing to make such orders. Regard was paid to her acute
health needs and and her right to bodily autonomy .

” Article 38, Article 39(e), Article 41 and Article 47 in Part IV of the Indian Constitution as
well as the fundamental right guaranteed under Article 21 of the constitution deal with potent
and substantive contents of the right to life in its broad sweep also includes right to good
health”16. The court further observed that” it includes the ability to obtain all kinds of
healthcare services including prevention, diagnosis, treatment and manangement of diseases,
management of health disorders, diseases and illnesses as also the management of other
health impacting conditions”17. The counsel thus submits that Sarah’s right to good health lies
in her being cryonically preserved and giving her a second chance of living life with dignity
as and when a cure is available to her disease.

13
In Re(Suo Motu) v. UOI & Ors W.P. 8914/2020
14
Murli S Devda v, UOI (2000)8SCC765
15
Re JS (A Child) [2017] 4 WLR 1
16
In Re(Suo Motu) v. UOI & Ors W.P. 8914/2020
17
ibid
 14
MEMORIAL ON BEHALF OF THE PETITIONER