Case Commentaries

CONSTITUTIONAL LAW

ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA

(2011) 15 SCC 480

Ms Ruhi Thakkar

Cheated by life, saved by death


Introduction


When the essence of life and death goes beyond medicine and derives its meaning from belief systems and religion, the question of euthanasia or mercy killing poses a major medical, ethical, and legal dilemma. The Supreme Court, in its landmark Judgment of Aruna Ramchandra Shanbaug v. Union Of India[1], dated 7th March 2011, delved into this dilemma and accepted passive euthanasia as constitutional. It is the withdrawal of medical treatment with the deliberate intention to hasten a terminally ill-patient’s death. The Apex court went on a slippery slope to decide upon an issue so sensitive that it has divided the medical fraternity right at the centre. The decision of the court has affected the lives of many. But for Aruna Shanbaug, this debate, this case was a journey of hope, filled with plight.


The author has, herein, aimed to throw light on the scope of ‘Right to Life’ as discussed in the judgment and various sources relied upon by the court and, though, the case opened the door of passive euthanasia for the country, it was clearly shut for Aruna. She was the starting point of this judgment but was somewhere forgotten while dealing with the medico-legal intricacies.


Factual Matrix:


The case initiated with a writ petition filed under Article 32 of the Constitution of India on behalf of the petitioner, Aruna Ramchandra Shanbaug, by one Pinki Virani, who has also written a book on her life, claiming to be her ‘next friend’. Aruna Shanbaug was a staff nurse at KEM Hospital, Mumbai. On the evening of November 27, 1973, she was attacked by a sweeper, Sohanlal Valmiki, in the hospital. The sweeper wrapped a dog chain around her neck and then yanked her back with it. He tried to rape her, but on finding that she was menstruating, he sodomized her instead. To immobilize victim during the act, the offender twisted the chain around her neck. The next day, a cleaner found her lying on the floor, covered in blood and in an unconscious state. Due to the strangulation, the supply of oxygen to the brain had stopped, which had left her in a persistent vegetative state. After the incident, the nurses of the hospital took utmost care of her. Thirty-eight years had lapsed since the sexual assault, which had left Aruna in a state where she was just surviving on mashed food and had no awareness of herself or her surroundings. The petitioner, therefore, prayed that the respondents be directed to stop feeding Aruna, and let her die peacefully.


A counter affidavit was filed by the respondents, (dean and staff of KEM Hospital) claiming that Aruna still reacts sometimes and is not brain-dead. Due to the differences in the allegations, the court appointed a team of three doctors, who submitted a report on her condition. Eventually, it was concluded by the court that she was not brain-dead, and, hence, it was not a fit case for passive euthanasia.


Issues:


The issues raised in this case were as follows:


· If a person is in a Permanent Vegetative State (PVS), should the withdrawal of the life sustaining treatments be permissible?

· If a person is on life-sustaining treatment and is not in the state to express his wishes anymore, should the request of his family or the next of kin to withhold such treatment be respected?

· Aruna Shanbaug was abandoned by her family, and for the last 37 years, the staff of KEM hospital has looked after her. Who should take the decision on her behalf?


The Decision and Reasoning:


The case was filed as a writ petition in the Supreme Court under Article 32 of the Constitution. It was held in Gian Kaur v. State of Punjab [2]that the right to life guaranteed by article 21 does not include the right to die. The petition could have been dismissed on the mere ground that no violation of fundamental rights is shown by the petitioner. However, the Apex court, considering the importance of the issue, did not dismiss the case. Although the court felt like a ship in an uncharted sea, it decided to go deeper into the merits of the case.[3] The appointed medical team submitted a report and a CD of the examination, and various important medical terms relevant to the case were explained to the court by the team. On the basis of the team’s submission, it was concluded that Aruna Shanbaug is not brain-dead. Brain-dead is defined as “a state of prolonged irreversible cessation of brain activity, including lower brainstem function and with the complete absence of voluntary movements, responses to stimuli, brainstem reflexes, and spontaneous respirations. She was in a Permanent Vegetative State which is explained as the complete absence of behavioral evidences of self of environmental awareness. The patients are awake but have no awareness.”[4]


In his affidavit, Dean Dr. Sanjay Oak implied that Aruna should not be subjected to passive euthanasia. He also expressed that the entire society has not matured enough to accept the execution of an act of euthanasia or mercy killing. [5]


The court elucidated that as there is no indication of Aruna’s wishes, the decision regarding her treatment, therefore, should be taken by a surrogate. According to the Hon’ble bench, it was the staff of KEM Hospital who looked after Aruna for 37 years, after she was abandoned by her own family. Pinki Virani, who had filed the petition on her behalf cannot be said to have such a bond with her, and the court refused to recognize her as a “next friend”. The ‘Locus Standi’ was reversed. The court held that the staff of KEM hospital would be the appropriate surrogate for Aruna, and they will decide if the withdrawal of the life-sustaining treatment would be in her best interest. The hospital was very clear on its stand and decided that Aruna Shanbaug will not be subjected to passive euthanasia.


The case could have ended here, however, the Apex Court chose to decide upon a larger question: should euthanasia be legalized in India, and if yes, under what conditions?


The distinction between types of Euthanasia was laid down as follows:


Active Euthanasia entails the use of lethal substances or forces to kill a person whereas passive euthanasia entails withholding of medical treatment for continuance of life. The difference between active and passive euthanasia is that in the former, something is done to end the patient’s life and in the later something is not done to end the patient’s life. In passive euthanasia, the doctors are not killing anyone; they are simply not saving him.”[6]


The court then examined the legal status of passive euthanasia or physician assisted suicide in countries including Netherlands, Switzerland, Belgium, UK, USA, Canada, and others. Thereafter, various foreign judgments were cited with extensive reliance on the Airedale case.[7]


The court then touched upon the legal status of suicide in India. Abetment to suicide (Section 306 of the Penal Code) and attempt to suicide (Section 309 of the Penal Code) are both criminal offenses in India. In Gian Kaur v. State of Punjab[8], it was held that the ‘right to life’ under Article 21 does not include the ‘right to die’, ‘it rather includes the right to live with dignity’. The decision in the Gian Kaur case overruled the earlier decision in P. Rathinam v. Union of India[9], wherein, the attempt to commit suicide was declared unconstitutional. The Apex Court, while deciding on the present case, conveyed that Section 309 should be deleted by the parliament as it has become “anachronistic“.[10]


Further, while answering the question about when can a person be said to be dead, the top court inferred that when a person’s brain stops functioning and a situation has been reached where any human functioning would be impossible, the person is declared to be brain-dead.


After a detailed reasoning behind the above-mentioned aspects, the court, laid down a law that would prevail until the legislation is in place. This was done following the technique used in the Vishaka case[11],wherein, certain temporary guidelines were laid down in the absence of any law regarding sexual harassment at work place.


· A decision has to be taken about the withdrawal of life-support either by the parents or the spouse or other close relatives or, in their absence, by the person or body of persons acting as a next friend. It can also be taken by the doctors attending the patient, given that the decision should be in the best interest of the patient.


· Such a decision taken by the above-mentioned persons, however, requires approval from the High Court concerned as laid down in Airedale case.


The apex court conveyed that high courts must act on the lines of parens patriae, (father of the country) while taking its decision about such approval. The latter can grant the approval of withdrawing life support to an incompetent person under Article 226(1) of the Constitution. The top court also laid down the procedure to be adopted by high courts when such an application is filed.[12]


Therefore, if the KEM Hospital staff decides in the future to withdraw the life supporting treatment for Aruna, it can apply to the Bombay High Court for the approval of such decision.


Analysis:


The decision of the Hon’ble bench in the present case changed the fate of euthanasia in this country. The efforts of the Apex court are very well reflected, but the judgment has its own set of lacunae, which should not be overlooked.


Privacy or Hypocrisy

The Supreme Court, in its Judgment of K.S Puttaswamy v. Union of India,[13] held that the Right to Privacy is a fundamental right and is under the ambit of Right to life guaranteed by the Indian Constitution. In the Aruna Shanbaug case, it was concluded that Aruna, being alive and not brain-dead, shall not be subjected to passive euthanasia. It was inferred from the Gian Kaur case that ‘Right to life’ under Article 21 includes the ‘Right to die with dignity’. Therefore, Aruna had the fundamental Right to privacy.


The appointed medical team had submitted a CD of Aruna’s mental and physical examination, and the court had arranged the screening of this CD in the court room, so that everyone in the room could see the condition of Aruna Shanbaug.[14] Aruna, though declared ‘not dead’, was in no condition to give her consent for the screening in an open court. She would never even know that something of this sort was bound to happen. The court, being aware of her incompetency to consent, held the screening and relied on the Nuremburg trials, in which screening was done in the courtroom of some of the Nazi atrocities during the Second World War. This screening couldhave been done in private. Although it was ruled that Aruna was still alive, the bench itself treated her as an inanimate object of examination.[15] Did she not have the Right to privacy? Was her dignity not important? The privacy, dignity, and autonomy of a person guaranteed by Article 21 should be respected through their lifetime, during the commencement of the process of death, and until the point of death. Sadly, this intricacy was completely overlooked in Aruna’s case.


The Effort:


Clearly, KEM Hospital rendered Aruna’s case not fit for passive euthanasia. The author would like to throw light on the submission of the Dean of the hospital, where he said, “Aruna lives in her own world for the last 37 years.” She is lying in a bed in a single room since all these years and is not able to stand or walk as her fragile bones might break. There are certain movements in her body but they are not pertaining to a specific purpose. She cannot even distinguish between a man and a woman, nor can she distinguish between ordinate and inordinate object. The dean further submits that “in the world history of medicine there would not be a single case where such a person is cared and nurtured in bed for 33 long years and has not developed a single bedsore. This speaks volumes of excellence of nursing care that KEM nursing staff has given to her.”[16]


While opining its view, the apex court highlighted, “the whole country must learn the meaning of dedication and sacrifice from the KEM Hospital staff. In 38 years, Aruna has not developed a single bed sore.”


The collective effort of the nursing staff of KEM hospital should always be respected. But it is not the only aspect that should be considered. The bench emphasized on how in 38 years she did not developed a single bed sore but did not pay heed to the fact that she was bedridden, in the same condition, unaware of her surroundings for all those 38 years. The Court somewhere got carried away by the agony of nurses, and to make sure that their efforts are not reversed, it decided that Aruna shall not die, despite her plight.


Justice :


Another crucial aspect is that although KEM hospital staff had developed an emotional bond with Aruna and were taking utmost care of her, it is important to not forget that it was the very hospital where this tragic incident had occurred. Aruna was a staff member of KEM hospital and was attacked in its premises by the sweeper employed there. That night, Aruna was sexually assaulted, but her perpetrator was never charged for it. He served his imprisonment term for seven years under the charges of Attempt to Murder and Robbery. There was no mention of sexual assault in any document whatsoever. While he commits a heinous crime, destroys a woman’s life, and walks free; that innocent woman was kept hanging between life and death for 42 long years. This was one of the worst cases of sexual harassment at work place, and the victim never got justice.


Essence of Life:


Another concern about this case revolves around the missing relevance of the quality of life. Just because Aruna could partially lick sugar and could, at times, put a smile on her lips, and did not get bed sores, was it justified to prolong her life full of miseries? Was it really in her best interest to live a life devoid of any human element? Let alone be answered, these questions were never addressed by the court. The quality of life element and the best interest of the patient test should have played a much larger role in the court’s decision.[17]


Sources and Ambiguity:


It is pertinent to note that while arriving at its decision, the Hon’ble bench relied extensively on foreign judgments and precedents. A detailed legislative status of Euthanasia in various countries was laid out. The judgment of the House of Lords in Airedale NHS Trust v. Bland[18] was also referred to and relied upon. In this case, the patient was allowed to die through the withdrawal of life-supporting treatment.


However, there was no consideration as to how would euthanasia be administered in India, especially, in the backdrop of its sharp rich-poor divide and a discriminative healthcare system.


The Judgment created much ambiguity about its stand, especially regarding the scope of the Right to life under Article 21. This was reflected during the case Common Cause (A Registered Society) v. Union of India[19], wherein, the issue of Euthanasia, living will, and the Right to die with dignity were dealt with. In February 2014, a three-judge bench of the Supreme Court had referred the matter to a larger bench, as it was observed that the decision in the Aruna Shanbaug case was based on misinterpreted judgment in the Gian Kaur case. Therefore, it was held, on 9th March 2018, in the Common cause case, by a five-judge bench of the apex court that the ‘Right to die with dignity’ is a fundamental right. It legalized the concept of living will, wherein, the patient can give advance directives about the course of his treatment if she later becomes terminally ill and is not in the state to express her consent. The ambiguity created in the case of Aruna Shanbaug was to some extent cleared by the Common Cause case judgment.[20]


Concluding Remarks:


The Supreme Court of India valiantly embarked on the journey of deciding on a very sensitive issue. However, it never reached the destination. The whole judgment in itself was an irony. The sources used did not seem relevant enough in the Indian scenario, and the whole case was inconsistent in itself. Aruna Shanbaug was let down. Somewhere, the court owed it to her to act in a bold manner and decide what was in her best interest. Nevertheless, she stayed in the same condition for 42 years and finally achieved eternal peace on May 18, 2015, due to a cardiac arrest caused by pneumonia.


The journey of passive euthanasia is a complicated one, and only time will tell whether the Judiciary and the Legislature will ever reach the final destination while still keeping the best interest of its people in mind.



References:

[1] Aruna Ramchandra Shanbaug v. Union Of India, (2011) 15 SCC 480.

[2] Gian Kaur v. State of Punjab (1996) 2 SCC 648: 1996 SCC (Cri) 374.

[3] Aruna Ramchandra Shanbaug v. Union Of India; (2011) 15 SCC 480.

[4] Aruna Ramchadra Shanbaug v. Union of India (2011) 15 SCC 480.

[5] Id. 1

[6] Aruna Ramchandra Shanbaug v. Union Of India (2011) 15 SCC 480.

[7] Airdale N.H.S Trust v. Bland, 1993 AC 789.

[8] Id 6

[9] P.Rathinam v. Union of India (1994) 3SCC 394 : 1994 SCC (Cri) 740.

[10] Id 1.

[11] Vishaka and others v. State of Rajasthan & others (AIR 1997 Supreme Court 3011).

[12] Id.6

[13] K.S Puttaswamy v. Union Of India (2019) 1 SCC 1

[14] Supra, note 6

[15] Zia Mody, 10 Judgments That Changed India, Foreword by Soli J. Sorabji

[16] Id. 6

[17] Supra.15

[18] Id 7

[19] Common Cause v. Union of India & Anr. ((2018) 5 SCC)

[20] Right to die with dignity and Article 21 of the Constitution, Sneha Priya, Legal Services India.

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