Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011.

All of its people have a right to life as it an absolute right guaranteed under article 21 of our constitution and there are certainly no doubts when it comes to the Right to life

Introduction

The Constitution of India guarantees ‘Right to life to all citizens’ under section 21 .The Right to life is arguably the most significant Fundamental rights. There is still  ongoing and constant debate on whether ‘Right to Die’ can also be read into this provision still lingers the air .Thus the concept of ‘Right to life’ is central to the debate on the on the issue of Euthanasia. Euthanasia is controversial since it involves deliberate termination of human life.

Initially ,the courts didn’t recognise the right to end a person’s life however the historical case of Aruna Shanbaug case forms the foundation for the legalization  passive euthanasia in India

BACKGROUND:

• Aruna Ramchandra Shanbaug the petitioner in this case was a  staff nurse working at King Edward Memorial Hospital located in Mumbai. One of the sweepers of the hospital attacked her on  27^th November ,1973. He  choked and strangulated her via a dog chain in order to restrain any movement from her end in an attempt to rape her.
• Upon realizing that Ms. Aruna was menstruating he sodomised her. The very  next day, on 28^th November ,1973 Ms. Aruna was found lying on the floor with blood everywhere and all over her. One of the cleaners found her in an unconscious condition. The strangulation via the dog ceased the supply of oxygen to her brain causing severe damage to the cortex of the brain. She sustained brain stem contusion too along the cervical cord injury.
• A petition for the case was filed under article 32 of the Indian Constitution by a friend of Ms. Aruna in the year of 2009, after as many as 36 years of the incident. For so many years Ms. Shanbaug has been in a ‘Permanent Vegetative State’. Thirsty- six years have aforementioned occurrence. She was unable to move her hands or legs and had been living on mashed food. It was said  that there was no chance for her health to get any better and that she was totally reliant on KEM Hospital in Mumbai.

FINDINGS OF THE COURT APPOINTED DOCTORS

The petition that was filed the respondent parties i.e KEM Hospital and Bombay Municipal Corporation filed a counter petition .This led to a rise in the disparities among both the groups. Since there were disparities , the Supreme Court to get a better picture of the situation appointed a team of 3 eminent doctors to investigate and provide a report of the exact mental and physical condition of Aruna Shanbaug . During this study doctors investigated her entire medical history and opined  that her brain is not dead . She has her own way of understanding and reacting to situations. Also , Aruna’s body language did not show any willingness to terminate her life. Neither the nursing staff showed any carelessness towards taking care of her . Thus , it was believed that the euthanasia in the current matter is not essential.

ISSUES:

1.         Should the withdrawal of life-sustaining systems and means for a person who is in a vegetative state (PVS) should be permissible?

2.         Does a person’s family or next friend have the authority/ right to seek the withholding or removal of life-supporting measures if the individual has not made such a request already?

3.         Whether Aruna Ramchandra Shanbaug be declared dead?

4.         Should the Right to Die  fall within the ambit of Article 21 of the Constitution?

5.         Whether sections 306 and 309 of IPC be constitutionally valid?

6.         Should euthanasia be permitted and what legal issues revolve around it?

Petitioner’s Arguments

A petition was filed by Ms. Shanbaug’s friend under article 32 of the Indian Constitution. The counsel for the petitioner contended that the right to life guaranteed under article 21 includes the right to life with utmost dignity. It must therefore also include the right to die with dignity. Any individual suffering from any terminal illness or is in a permanent vegetative state must be included under the ambit of the “right to die” in order to end the prolonged suffering and agony. She lacks any awareness of her surroundings, is even devoid of the ability to chew her food, can’t express anything on her own, and is just bedridden for the past 36 years with no scope of improvement. The patient is virtually dead and the respondents by not feeding Ms. Shanbaug won’t be killing her.

[i]

Respondent’s Arguments

• The dean of the Hospital contended that Ms. Shanbaug was being fed and taken care of by the nurse and hospital staff for as many as 36 years. The staff had exceptionally and with utmost responsibility and willingness to take care of her. Therefore, they oppose and resent the idea of Ms. Shanbaug being euthanized. Now that the patient has crossed as many as 60 years of age she might naturally succumb to death.
• They begged the court to not permit the act of killing. The staff has been diligently and with respect taking care of all her fundamental necessities and prerequisites. On the off chance that this is legitimized, the act of euthanasia can be profoundly inclined to abuse. One of the medical attendants has even been willing to take care of her without being renumerated. The petitioner unlike the clinic staff neglects to have such a close-to-home association with the patients and lacks the necessary emotional attachment.
• Since the staff diligently and with utmost dignity took care of Mrs. Shanbaug for many years. They looked after her basic needs and requirements. Legalization of passive euthanasia can be prone to misuse by family members, relatives, etc. they pleaded with the court to reject the allowance of practice of euthanasia. The hospital staff has an emotional connection with the patient to the extent that one of the nurses is ready to look after Mrs. Shanbaug for the rest of her life without being renumerated.
• Terminating Ms. Shanbaug’s life would be immoral and inhuman since she has a right to live. Moreover, the hospital’s staff’s exceptional and selfless service must also be taken into consideration. Furthermore, since the patient herself is not in a condition to give consent for withdrawal from the life support system the next big question to come into the picture Is who would consent for Ms. Shanbaug.[ii][iii]

EUTHANASIA [GOOD DEATH]

Euthanasia or synonymized as mercy killing is an act or a practice in which the individual who is in irremediable condition or has no chances of survival as he is suffering from terminal illness ends his life in a painless manner. There are two forms of euthanasia i.e active and passive euthanasia. Active euthanasia entails the use of lethal substances or forces to kill a person  e. g a lethal dose of drug given to a person with terminal cancer who is in terrible agony . Passive Euthanasia entails withholding of medical treatment for continuance of life e.g withholding of antibiotics  where without giving it a patient is likely to die of deprivation .

However, a further categorization of euthanasia is  done between voluntary euthanasia and involuntary euthanasia . Voluntary euthanasia is where the consent is taken from the patient, whereas  non-voluntary euthanasia where the consent is unavailable ,while there is no legal difficulty in the case of  the former while the latter possess several problems.  The present case dealt is passive non-voluntary euthanasia.

Medical Ethics and medical facts give two cardinal principles:

Informed Consent: Informed Consent is the kind of consent wherein the patient is fully aware of all of the future course of his treatment, his chances of recovery and all the side effects of all of these alternatives courses of treatment . If a person is in a position to give a completely informed consent and he is still not asked , the physician can be booked for assault, battery or even culpable homicide. The concept of informed consent comes into question only when the patient is able to understand the consequences of the treatment or has earlier made when in sound conditions made a  declaration.

In this case, the consent of Aruna could not be obtained and thus, the question as to who should decide on her behalf became more prominent. This was decided by beneficence. Beneficence is acting in the patient’s best interest. Acting in the patient’s best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. Public interest and the interests of state were also considered. The mere legalisation of euthanasia could lead to a wide spread misuse of the provision and thus, the court looked at various jurisprudences to evolve with the safeguards.

RIGHT TO DIE

All of its people have a right to life as it an absolute right guaranteed under article 21 of our constitution and there are certainly no doubts when it comes to the Right to life . But there has always been issues of contentions regarding the right to die among the lawmakers.  India being country where ethics, morality and religion play a vital importance . However there are two schools of thought pertaining to the matter .

On one hand, some people are of the opinion that the legitimization of right to die dilutes the sanctity of human life since the preservation of human life is of paramount importance. On the other hand ,some people state that when the constitution grants the  right to life than an individual shall also be entitled to the right to die with dignity in order to end the suffering and pain.

• In the case of  State of Maharashtra v. Maruty Shripati Dubal[iv], the contention was that section 309 of the Indian Penal Code was unconstitutional as it is violative of article 19 and 21.It was held in this case by the Bombay High Court that ‘right to life’ also includes ‘right to die ‘ and section 309 was struck down. The court clearly opined in this case that right to die is not unnatural; it is just uncommon and abnormal.
• In the case of  P.Rathinam v. Union of India [v]it was held that scope of Article 21 includes the ;right to die’. P . Rathinam held that Article 21 has also a positive content and it is not merely negative in its reach.
• In the case of Gian Kaur  v. State of Punjab[vi] , the validity of section 306 of the IPC was in question which penalised the abetment of suicide . This case was overruled P. Rathinam but the court opined that in the context of the terminally ill patient or one in the PVS ,the right to die is not termination of life prematurely but rather accelerating the process of death which has already commenced. Further it was also submitted that right to life with human dignity must include also include a death with dignity and not one of subsisting mental and physical agony. The court held that the right to die with dignity should be distinguished from right to die .As right to die  is an unnatural death which take away person’s  natural span of life, on the  other hand the right to die with dignity is a subsistence provide to a person .

Hence both these rights are altogether different and should not misconstrued. Various nations recognise the right to die with dignity as an important right for an individual ,thus creating way for passive euthanasia.

JUDGEMENT ANALYSIS

• The Hon’ble Division Bench of the Supreme Court of India ,comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this judgement on 7^th March,2011.The court  opined that based on the doctor’s report and the definition of brain death under the Transplantation of Human Organs Act,1994, Aruna was not brain dead. She could breath without a support machine ,had feelings and produced necessary stimulus. Though she was in a PVS, her conditions was been stable. So terminating her life was unjustified.
• Further, the right to take decision on her behalf vested with the management and staff of KEM Hospital and not Pinki Virani. The life saving  technique was the mashed food, because of which was surviving. The Indian Law in no way advocated not giving food to a person .Removal of ventilators and discontinuation of food could not be equated. Allowing of euthanasia to Aruna would mean reversing the  effects .
• The honourable court of India emphasised on the fact that euthanasia is a crime which is practiced all over the world and is only permissible if consented by the  legislation. Taking into account the Indian account the Indian position , active euthanasia is considered  illegal and a crime under section 302 or section 304 IPC. Physician assisted suicide (it is patient himself who administers the lethal medicines assisted by a doctor) is too a crime under section 306 IPC and attempt to suicide is also criminalised under section 309 IPC. The court was of the view that section 309 should be looked into by the parliament as a person takes a  suicidal step out od depression and he needs help rather than punishment.
• The court also referred to the Airedale case , in which Judges of Houses of  Lords  agreed that the patient be allowed to die as he was exact in the same case as of Aruna ‘Airedale (1993) decided by the house of Lords has been followed in a number of cases in U.K and the law is now well settled that in the case of incompetent  patients, if the doctors act on the basis of informed medical opinion , and withdraw the life supporting system  if it is in the patient’s  best interest then the said act cannot be regarded as a crime.
• In the case of Charan Lal Sahu v. Union of India[vii], the doctrine of  Parens Patriae has been explained: The legislature has the power to provide protection to the incompetent persons ,minor and insane and in the modern law it is the state that has the duty to take care of such people.
• The Supreme Court allowed passive euthanasia in certain conditions. But the  court decided that in order to prevent misuse of this provision in the future, the power to determine the termination of a person’s life would be subjected to High Court’s approval following a due procedure.
• Whenever any application will be filed in High Court for passive euthanasia, the Chief Justice of the High Court should constitute a Bench of at least two judges deciding the matter that whether such termination should be granted or not. The Bench before laying out any judgement should consider the opinion of a committee of 3 reputed doctors. These doctors are also nominated by the Bench after discussing with the appropriate medical practitioners. Along with appointing this committee, it is also the duty of the court to issue a notice to the state, relatives, kins and friends and also provide them with a copy of the report made by a committee of doctors, as soon as it is possible. And after hearing all the sides, the court should deliver the judgement. This procedure is to be followed in India everywhere until any legislation is passed on the subject.
• In the Ultimate decision of this case, by keeping all the important facts of the case in consideration, Aruna Shanbaug was denied euthanasia. Court also opined that if at any time in the future, the hospital staff feels a need for the same, they can approach the High Court under these prescribed rules. The verdict of this case has helped in clarifying the issues relating to passive euthanasia in India by providing a broad structure of guidelines which are to be followed. The court also recommended the repealing of section 309 of the IPC.

Conclusion

Euthanasia or mercy killing cannot be permanently denied therefore passive euthanasia can be thought of considering the fact that arises out of the ‘rarest of rare circumstances’. Thus Euthanasia can be legalized but  the laws would have to be stringent Every case will have to be carefully monitored taking into consideration the points of views of the patient, doctor and the relatives. But whether Indian society is mature enough to  face this is yet to be seen.

Considering the low ethical levels prevailing in our society and the rampant corruption and commercialization, we cannot rule out the possibility that unscrupulous persons with the help of unscrupulous doctors may fabricate the material to show terminal illness with no chance of recovery. Therefore the court is of the opinion that commercialization has taken another turn in our society and therefore there can be doctors who uphold their duty but some can conspire to take away the life of an incompetent person, therefore it is suggested that due weightage should also be given to the approval of the withdrawal of life supporting system by the high court as mentioned in the doctrine of Parens Patriae.

---

[i] https://articles.manupatra.com/article-details/Case-analysis-of-Aruna-Ramchandra-Shanbaug-vs-Union-of-India(Petitoner’s arguments)

 

[iii] https://articles.manupatra.com/article-details/Case-analysis-of-Aruna-Ramchandra-Shanbaug-vs-Union-of-India(respondent”s  arguments)

[iv] 1987 (1) Bom CR.

[v] 1994 SCC (3) 394.

[vi] (1996) 2 SCC 648.

[vii] 1990 AIR 1480, 1989 SCR Supl. (2) 597

written by-Devyani Sahu . intern under legal vidhiya