Case Commentaries

CONSTITUTIONAL LAW

ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA

(2011) 1 SCALE 673

Ms Achintaya Soni, Mr Shwas Bajaj

INJECTING DIGNITY OR COAXING TO SUCCUMB

‘UNDERSTANDING ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA’

WRIT PETITION (CRIMINAL) NO. 115 OF 2009


DATE OF JUDGMNET: 07/03/2011

BENCH: Justice Markandey Katju and Justice Gyan Sudha Misra


INTRODUCTION

The scope of the most accentuated fundamental right in the Constitution of India, the Right to Life has been subject to adapting a very comprehensive domain to include right to legal aid[1], dignity[2], right to clean environment[3], right to decent cremation[4] and a cornucopia of other rights as well. However, the debate centring on whether the right to die also falls under its ambit has been long queued due to varying stances presented from time to time. It has always been encountered in various shades of grey.


It was only when a journalist moved the Supreme Court, pleading before the Hon’ble Court for allowing a 63 year old nurse who had spent almost four decades of her life in a vegetative state to die with dignity in a peaceful manner that the court took the initiative of answering the question. As Hon’ble Katju J. had put it back then, “We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by a Constitution Bench decision... that the right to life guaranteed by Article 21 of the Constitution does not include the right to die.”[5] Albeit, the court felt like ‘a ship in an uncharted sea’, nevertheless, decided “to go further into the merits of the case.”[6] The statement by Hon’ble Justice D.Y. Chandrachud, “Life and death are inseparable. Every moment our bodies undergo change… life is not disconnected from death. Dying is a part of the process of living”[7]appropriately explains how right to die with dignity is an essential element of the principle of right to life under Article 21 of the Constitution of India.


LEGAL BACKGROUND


Attempt to commit suicide is a criminal offence under the Indian penal law.[8] In the past few decades this penalisation of suicide attempts has encountered shedload of criticism. It was for the first time in 1971 that the Law Commission of India made a recommendation that Section 309 of the Indian Penal Code should be deleted as it was a ‘harsh and unjustifiable’ provision. The Delhi High Court made the observation that it was a “strange paradox that in the age of votaries of euthanasia, suicide should be criminally punishable”.[9] In 1985, in Maruti Dubal v. State of Maharashtra,[10] Section 309 was challenged on the ground of violating Articles 14 and 21 of the Constitution. The Bombay High Court accepting the petition agreed to the fact that there was “nothing unnatural about the desire to die”.


The question of permissibility of punishments for suicide came before the Supreme Court in the case of P. Rathinam v. Union of India[11]. After taking into consideration all the probable legal and moral repercussions of treating a suicide attempt in the form of a criminal offence, the court termed the provision as void and struck down Section 309 of the IPC on the ground of being ineffectual and contravening the right to life guaranteed under Article 21. Overruling the same, the court in Gian Kaur v. State of Punjab[12] ruled afresh that the constitutional right to life did not include the right to die. Therefore, clearing the road for Section 309 to be held constitutionally valid and effective.


The judgment in the Gian Kaur case was remarkable for one more reason. The judgment opened a window of opportunities for the purpose of legalizing euthanasia within the prevalent legal framework. The court was of the opinion that although the constitutional right to life did not include within its ambit the right to die, it did encompass the ‘right to die with dignity’. For the persons who are terminally ill or in a permanent vegetative state, the process of natural death had already started, and hence there was a possibility of reasoning about the accelerating process, making it consistent and in consonance to the right to life as enshrined in the Constitution.


FACTS


The petitioner, Ms. Aruna Shanbaug was a nurse by occupation in King Edward Memorial Hospital (“KEM”), Parel, Mumbai. It was the evening of 27.11.1973 that proved to be the world-shattering day for the ebullient Aruna. The libidinous Mr. Sohanlal Bhartha Valmiki, the sweeper at KEM, barbarically assaulted the petitioner. With a clear intention of raping her, he wrapped a dog chain around her neck and heaved her back with it. However, on finding her menstruating, he sodomised her. She lay there unconscious with the chain twisted around her neck until she was found on the floor by a cleaner at 7.45 AM the next day, with blood splattered all around her. Allegedly, the strangulation caused the supply of oxygen to the brain to stop, resulting in brain damage, brain stem contusion, damage to spinal cord and cortical blindness. Following this, she was in a Persistent Vegetative State (“PVS”), where she could not even perform basic human functions and survived on mashed potatoes, until the day she died. She could neither see, hear nor communicate, in any manner whatsoever. Where her biological family abandoned her, she was very lovingly and saliently cared for by the hospital staff of KEM. It was after 37 years in 2009, that a Journalist- Activist Ms. Pinky Virani having been drawn to Aruna’s suffering filed a writ petition, on behalf of Aruna Shanbaug before the Apex Court under article 32. Standing firmly as Aruna’s friend, she prayed before the court that the “respondents be directed to stop feeding Aruna, and let her die peacefully”, which would be possible only legalising euthanasia through legislation.


JUDGMENT


It was the day of 7th March, 2011 that the Hon’ble Division Bench of the Supreme Court of India delivered this historic judgment. In the opinion of the court, Aruna was not brain dead and terminating her life was not the last resort. It was concluded on the basis of the report of the board of three doctors and the definition of brain death under the Transplantation of Human Organs Act, 1994. It was noted that Aruna could breathe.


It is pertinent to note that a notice was served to respondents upon the petition by Ms. Pinky Virani. But due to inconsistency in allegations in the petition and the counter- affidavit of Dr. Pazare from KEM, the Supreme Court appointed a board of three eminent doctors from Mumbai to examine the petitioner thoroughly and thereafter submit a report on her physical and mental condition. The report detailed that the patient was not in a state of coma and gave responses to certain situations in her own way and they neglected the desideratum for euthanasia. The events of the case folded in a way where the KEM staff and the Bombay Municipal Corporation filed counter- petitions, opposing euthanasia for Aruna. To boot, the nurses at KEM looked after Aruna and considered her to be a bond that united them. Taking this into consideration, the court on 7.03.2011 dismissed the petition by Pinky Virani, however, allowed passive euthanasia in India.


The court also held that Ms. Pinki Virani who claimed to be the next friend to Aruna, was not actually to be considered her next friend. The right to take decision if to be vested should be the management and staff of KEM who devoted their entire life in serving and saving Aruna. Allowing euthanasia to Aruna, in the opinion of the court would equate to reversing the efforts put by the nurses and the staff of KEM over the years.


Furthermore, in the light of the principle of Parens Patriae, the court in its decision so as to also prevent the abuse and exploitation of the vested power for determining the termination of life of person gave permission for allowing passive euthanasia under some circumstances, after getting the required sanction from the High Court following the due procedure. The court mandated a bench of at least two judges by the High Court to decide upon the matter of approval or rejection of euthanasia. In this case also, an expert opinion of the three eminent doctors (to be nominated by the Bench upon consultation with such medical authorities/ medical practitioners as it may deem fit) is to be taken into consideration. The High Court is also required to issue a notice to the State and the Close Relatives of the patient. The High Court’s verdict should be inclusive of these and that this procedure is subject to be followed until the Parliament makes a legislation.


Additionally, the court put forth a recommendation for repealing Section 309 of IPC.


CRITICAL ANALYSIS


Ernest Hemingway, in his book “The Old Man and the Sea”, expounded the thought that the man can be destroyed, but cannot be defeated. In the same backdrop, life in the absence of dignity is an unacceptable defeat, and the life that meets death in a dignified manner is a value aspired for, which becomes a jiff of momentary celebration. Today is the age where the mere physical presence is considered the only aspect to a dignified way of living life. However, mere existence does not equate to presence. When the identity is lost, there arises a feeling of doddering in that partial quality of living. Seeing the sanctity attached to the quality of life, one wonders if a person should be expected to remain in a state, where the only choice left is incurable passivity in that suffering from pain or shall he be given permission to close the doors of life and cross the threshold, in a painless and dignified manner, of the dark tunnel of death where it is believed that there is resplendence. Looking into this question, there surfaces the question of law – shall the individual in a permanent vegetative state be provided with such treatment which has come into existence with the passage of time and development and progress made in medical technology so that he/she is kept alive only in a mere physical manner without having any realization of what is happening around him/her or should his/her individual dignity be upheld by way of smoothing the process of dying.


Article 21 of the Indian Constitution ensures that no individual would be deprived for their right to life and personal liberty. The word “liberty” is the choice and realization of choice of the attributes associated with the said choice; and the term “life” is the desire to have the same with dignity. The terms ``liberty ” and “life” are linked to each other fundamentally. We cannot imagine a life which lacks liberty as such a life would in any case amount to a meaningless survival. The guarantee of right to life and liberty as provided under Article 21 of the Constitution of Indian is worthless until and unless it includes within its ambit individual dignity. In Rathinam v. Union of India and another[13], the Hon’ble court held that “Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality”. It cannot be denied that the right to live in a dignified manner includes within its ambit the smoothening of the process of dying in the case of a terminally ill patient or a person in permanent vegetative state having no hope of recovery.[14]


In the present case, the Division Bench of the Hon’ble Supreme Court after making a distinction between Active and Passive Euthanasia, only give guidelines for Passive Euthanasia, terming Active Euthanasia to be illegal. The fundamental basis of dissimilarity between active euthanasia and passive euthanasia arises from the fact that while the former necessitates a positive affirmative act, the latter is concerned with withdrawing of life support measures or withholding of medical treatment which was meant for artificially extending the life of the patient. In case of active euthanasia, a particular overt act is performed for the purpose of ending the life of the patient while on the other hand in case of passive euthanasia, an act is omitted which was essential for conserving the life of the patient. This is the basic difference between the two kinds of euthanasia which compels most of the countries across the globe to legalize passive euthanasia, either by way of enactment of a law or through judicial interpretations with some conditions and safeguards. The interpretation made by a number of Apex Courts across the world is that passive euthanasia does not amount to killing distinct from active euthanasia in which a harmful substance is injected to cause the death of the individual. In passive euthanasia the nature is allowed to do its course and accelerate the process of death. Passive Euthanasia ends the gloom and predicament of such terminally ill individuals as well as their families. With regards to those patients who are unable to give their consent for euthanasia because of being in a vegetative state, the infringement of Article 21 does not really arise when the decision to withdraw the life support measures is taken in light of the best interests of the incompetent patient, particular in the case where the assessments of the best interests is left to the decision of a higher judicial body, i.e., the High Court. For example, in case of dysfunctional bodily organs, or decapitated limbs, decisions are taken to transplant or amputate in the best interests of the patient. In the similar manner, abortion laws, or Medical Termination of Pregnancy Laws, are analogous examples of best interest concept. In Cruzan’s case[15], the US Supreme Court observed that the due process clause undoubtedly protected “the interests of a person in life as well as an interest in refusing life sustaining medical treatment.”


The ruling made by the House of Lords in Airedale[16] has laid down an essential principle of law where it says that “withholding or withdrawal of life support to a dying patient merely amounts to allowing the patient to die a natural death and that where death in the normal course is certain, withholding or withdrawal of life support is not an offence”. Thus, the patient’s right of self-determination is and should be absolute.


The notion of the doctors providing a deadly dose to such individuals who no longer have a desire to live and who have given their consent for the same is both unconstitutional and illegal under Indian law.[17] In this light, the 241st Law Commission, displayed a deviation from the recommendation of the 17th Law Commission and supported the view of Apex Court in Aruna’s case. The recommendations of 241st Law Commission were expected to be tabled as a bill and ultimately find its place into a new legislation. The Law Commission proposed making of legislation on passive euthanasia and prepared a draft bill called the Medical Treatment of Terminally Ill Patients (protection of patients and medical practitioners) Bill. It doesn't recommend active euthanasia. However, nothing of the sort has happened.


Then on 25th of February 2014, the Supreme Court referred to a Constitution bench the question of legalization of euthanasia. The Constitution Bench legalised Passive Euthanasia by giving legal sanction to 'Advance Directive' or 'Living Wills'.[18] Despite four separate opinions of the bench, all the judges were of the unanimous opinion that since a person cannot be allowed to continue suffering in a PVS when he or she doesn't wish to live, the 'living will' should be permitted. It means advance communication of a patient’s decision on the withdrawal of life saving treatment.


But the core impasse still remains is that there exists no enactment on the issue. The absenteeism of any law administering the subject would ultimately unfold into individuals taking to courts to look for the 'consent' to end their own lives, or the lives of others over whom they have some kind of control. Therefore, the debate still remains unsolved with more scope of deliberation and improvements as, “Every solution of a problem raises new unsolved problems.”[19]



References:


[1] M. H. Hoskot v. State of Maharashtra, AIR 1978 SC 1548.

[2] Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.

[3] Ratlam Municipality v. Virdhi Chand, AIR 1980 SC 1622.

[4] Ramji Singh @ Mujeeb Bhai v. State of U.P. and Others (2009) 5 Alj 376.

[5] Aruna Ramchandra Shanbaug v. Union of India, (2011) 1 SCALE 673.

[6] Ibid.

[7] Common Cause v. Union of India, (2018) 5 SCC 1.

[8] Indian Penal Code, 1860; Section 309

[9] State v. Sanjay Kumar Bhatia ((1986) 10 DRJ 31.

[10] Maruti Dubal v. State of Maharashtra, (1986) MhLJ 913.

[11] P. Rathinam v. Union of India, AIR 1994 SC 1844.

[12] Gian Kaur v. State of Punjab, AIR 1996 SC 1257.

[13] P. Rathinam v. Union of India, AIR 1994 SC 1844.

[14] Common Cause v. Union of India, (2018) 5 SCC 1.

[15] Cruzan v. Director, Missouri Department of Health, 497 U.S. 264 (1990).

[16] Airedale NHS Trust v. Bland, (1993) AC 789 HL.

[17] Sangeetha Mugunthan, A Constitutional Perspective of Euthanasia & ‟Right to Die‟, KLT Journal, 2006(1), P-38.

[18] Supra Note 14.

[19] Karl Popper

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