ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA

ARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA

By:- Shriyanshi

In the Supreme Court of India

NAME OF THE CASEARUNA RAMCHANDRA SHANBAUG V. UNION OF INDIA
CITATIONWrit Petition (Crl.) No. 115 of 2009
DATE OF THE JUDGEMENTMarch 7, 2011
APPELLANTAruna Ramchandra Shanbaug
RESPONDENTUnion of India and Others
BENCH/ JUDGEMarkandey Katju and Gyan Sudha Mishra
STATUTES/CONSTITUTION INVOLVEDConstitution of India.
Indian Penal Code, 1860;
Evidence Act, 1872.
Human and Civil Rights.
Medical Jurisprudence
IMPORTANT SECTIONS/ARTICLESConstitution of India – Article 21, 32, 226, 141
Indian Penal Code, 1860 – Sections 306, 302, 304, 309, 46
Evidence Act, 1872 – Sections 14, 3(2), 39, 45, 65, 57, 65-B, 85-B and 87
Human and Civil Rights – Right to die/ Euthanasia  

ABSTRACT

This petition is filed by petitioner under Article 32 of the Constitution seeking violation of fundamental right of right to die with dignity. The petition is filed on behalf of Aruna Ramchandra Shanbaug who is in a permanent vegetative state (PVS) by Ms. Pinky Virani claiming to be the next friend, to let Aruna die peacefully by euthanasia. The report of the doctors symbolise that Aruna cannot be declared dead and thus the case is filed in front of the Supreme Court to decide for the implementation of euthanasia to the patient and to solve the concept that has been since a long time a debated topic.

INTRODUCTION

Quoting the words of Jt. Markandey Katju which he himself took from Mirza Ghalib: “Marte hain aarzoo mei marne ki Maut aati hai par nahin aati”

Euthanasia is a concept that has encircled the legislation of the whole world, it is taken into consideration when a person is incompetent and no longer has the chances of recovery and the body remains stable in spite of the treatment given. Medical ethics and medical facts give two cardinal principles:

Autonomy, the right to self-determination, where the patient has the right to choose for his treatment mannerism and for this the patient has to be competent and if he is found incompetent then the surrogates acting on his behalf shall take decision in the best of the patient’s interest as he would have been taken if he was competent and it should be devoid of any personal motive or malice.

Beneficence, acting in the best interest of the patient

Euthanasia is of two types:  Active euthanasia means the use of lethal substances or forces to kill a person, for example, the use of a lethal injection to a person who is in terrible agony with terminal cancer. Passive euthanasia involves withholding or withdrawal of treatment for the life to be continued. It is mostly the active euthanasia made illegal unless the legislation’s permission is there but passive euthanasia can be allowed without the approval of the legislation provided certain conditions are maintained.

“The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life.”

To further diversify euthanasia, it is voluntary wherein the patient’s consent is obtained whereas it is involuntary in which the consent is unavailable or is incompetent to give consent.

Permanent vegetative state (PVS) is that state when the brain stem remains alive and functioning while the functional part of the cortex has been lost, thus such patients breath unaided and the digestion continues to function but he cannot see or hear or speak or taste or smell. The patient is unable to make voluntary movements though he responses to the painful stimuli, no emotions of pleasure or distress. Though PVS has to be distinguished from coma wherein the person completely loses every pain or emotion and cannot respond to any stimulus, the person remains like a laid skeleton.

In India, active euthanasia is a crime under Section 302 or 304 of the Indian Penal Code. Euthanasia assisted by a physician is considered to be a crime under section 306 of the IPC.

FACTS OF THE CASE

Adhering to the writ petition filed by Ms. Pinky Virani on behalf of Aruna Ramchandra Shanbaug, Aruna Ramchandra Shanbaug was working in King Edward Memorial Hospital, Parel, Mumbai as a staff nurse. It was on the evening of 27th November, 1973 that the nurse was attacked with a dog chain by a sweeper in the hospital, the sweeper strangulated her neck with the help of the dog chain, simultaneously “yanked her back with it”. He tried to rape her but on discovering that she was menstruating, he eventually sodomized (anal intercourse) her. He twisted the chain around her neck so as to prevent any form of mobilization on her part. On 28th November at 7: 45 am, a cleaner found her lying unconsciously stained with blood.

Due to strangulation with the use of the dog chain around her neck, there was deficiency of oxygen in the body and in effect the brain got damaged. The Neurologists in the hospital also found out that she had plantars’ extensor, which etymologically means damage to the cortex or any other part of the brain, in addition, it was alleged that she had brain stem contusion injury associated with cord injury.

Since then, 36 years have passed and now the petitioner is 60 years of age, her body has become loose with lightweight, her bones could break if her hand and leg are caught accidently, she has even stopped menstruating and her body’s skin like a papier mache’ laid over a skeleton. She could barely eat any food except mashed food, on which she survives as her teeth had decayed and any food if put in her mouth, she is unable to chew.

Aruna has now grown into a skeleton as she is in a persistent vegetative state as her brain is dead, cannot chew any food, no state of awareness, and unable to swallow any liquid food. On the bed itself, her excreta and urine are discharged. For a while she is cleaned up but again goes into the same sub- human condition.  Therefore, on these specifications, Aruna is entitled as a non- living person and it is only on the account of the mashed food that is put in her mouth which gives a façade of life.

It is alleged in the petition, since there are no chances of improvement in her condition as she has turned into a virtual skeleton in the KEM hospital, Mumbai; seeing her state, she be allowed to die peacefully.

“Notice had been issued by this Court on 16.12.2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet. Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare”[1]

“Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were:

(1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and

 (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.”[2]

It was found by the committee that though Aruna survived after the assault and strangulation, she did not fully recover from the trauma and the brain damage, she meets the criteria of permanent vegetative state. “PVS is defined as a clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and opening which may simulate sleep and waking”[3].

Thereafter, the court at the request of the Attorney General of India, the three doctors were called for in the next hearing as the court thought of asking their general views on euthanasia and that the usage of medical terminology be explained which a non- medical man would find difficult to understand.

“On 2.3.2011, the matter was listed again before us and we first saw the screening of the CD submitted by the team of doctors along with their report. We had arranged for the screening of the CD in the Courtroom, so that all present in Court could see the condition of Aruna Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials in which a screening was done in the Courtroom of some of the Nazi atrocities during the Second World War.”[4]

Various statements were issued by the respondents opposing the petition for euthanasia.

ISSUES RAISED BEFORE THE COURT

  1. If a person is in a vegetative state, should withholding or withdrawal of life sustaining therapies be permissible?
  2. If a patient has wished expressly, not to have life sustaining treatments in pursuant of futile care or a PVS, should the wish be respected when such circumstances arise?
  3. If a patient has not made such a wish and his or her kith or kin make a request to withhold or withdraw futile life- sustaining therapies, should their wish be respected?
  4. Whether the appellate be declared dead?
  5. Can Article 21 include right to die?
  6.  Can euthanasia be permitted and what all legal issues revolve around it?

ARGUMENTS FROM THE APPELLATE SIDE

  • Learned senior counsel for the petitioner relied on the decision of the Supreme Court in Vikram Deo Singh Tomar V. State of Bihar[5] wherein it was held that on interpreting Article 21 of the Constitution, every person has right to live with human dignity, this is fundamental right.
  • Learned counsel also referred to the case of P. Ranthinam V. Union of India and another[6] in which it was mentioned: “Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality.”
  • He emphasised on the paras 24 and 25 and particularly on the para 25 of the Gian Kaur V. State of Punjab[7] decision that a person who is terminally ill or in a persistent vegetative state, he may be permitted to end his life in those circumstances. “This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced.”   
  • The learned counsel also submitted that Ms. Pinky Virani is the next friend of Aruna as she has been following the case of Aruna from 1980 and that she has written a biography on Aruna and has done whatever possible and by all means to help Aruna.
  • Light was also thrown on the report of the Law Commission of India, 2006 on ‘Medical Treatment of Terminally Ill Patients’ by the learned counsel.

ARGUMENTS FROM THE RESPONDENT SIDE

  • Learned Attorney General argued that Aruna has the right to live in her present state and it does by no means proves justifiable to terminate her life by withdrawing hydration, food and medical support. The aforesaid act runs contrary to the Indian law.
  • He argued that even if the termination is allowed, the efforts put in by KEM hospital nurses looking after Aruna will be undermined.
  • He also argued that the Law Commission’s report as stated by the petitioner on euthanasia stands disapproved by the Government of India. He further stated that Indian society is based on emotional connect and unlike the West, we do not send old parents to old age home.
  • It was mentioned by him that there was a risk in permitting euthanasia as the person may be killed with the assistance of the doctors to the relatives and that there would be unfair use of the treatment.
  • Learned senior counsel for the Dean, KEM hospital, Mumbai stated that Ms. Pinky Virani who has filed the case on behalf of Aruna has no locus standii and it is the hospital which could have filed the writ petition.
  • Mr. Andhyarujina who was appointed as the amicus curiae was of the opinion that Aruna is not totally unconscious as was found by the report of the three doctors and has sensory stimulation of pain, etc.

RELATED PROVISIONS

CONSTITUTION OF INDIA

  • ARTICLE 21 – To further diversify euthanasia, it is voluntary wherein the patient’s consent is obtained whereas it is involuntary in which the consent is unavailable or is incompetent to give consent.[8]
  • ARTICLE 32 – Remedies for enforcement of rights conferred by this Part
    1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed[9]
    2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part[10]
    3. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )[11]
    4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[12]

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 exercises 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[13]
  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[14]
  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[15]
    1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and[16]
    2. 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[17]
  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[18]

INDIAN PENAL CODE 1860

  • SECTION 302 – Punishment for murder. —Whoever commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.[19]
  • SECTION 304 – Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.[20]
  • SECTION 306 – Abetment of suicide. —If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[21]
  • SECTION 309- Attempt to commit suicide. —Whoever attempts to commit suicide and does any act towards the commission of such offence, shall he punished with simple imprisonment for a term which may extend to one year 1[or with fine, or with both][22]

EVIDENCE ACT, 1872

  • SECTION 14- Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.[23]
  • SECTION 39 – What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.]2[39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.—When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.]”[24]
  • SECTION 45- Opinions of experts. —When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.[25]
  • SECTION 65-B – when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;[26]
  • SECTION 87- Presumption as to books, maps and charts. —The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts and which is produced for its inspection, was written and published by the person and at the time and place, by whom or at which it purports to have been written or public[27]

 JUDGEMENT

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 position, active euthanasia is considered illegal and a crime under section 302 or section 304 IPC. Physician assisted suicide (it is the 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 criminalized under Section 309 IPC, the court was of the view that Section 309 should be looked into by the Parliament as a person takes suicidal step out of depression and he needs help not punishment. The court took into cognizance the various laws regarding active euthanasia in different countries like Netherlands, Switzerland, Belgium, United States of America, etc. wherein they observed that states like Montana, Oregon and Washington have legalized physician assisted death but U.S.A. has declared active euthanasia as illegal whereas Belgium and Netherlands have legalized the practice of euthanasia. This case deals with non-voluntary passive euthanasia, that is, the question raised can the patient be allowed to die when no consent has been obtained in his part.

The court referred to the Airedale case[28], in which the Judges of House 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 fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.”[29]

The court held in Gian Kaur V. State of Punjab[30] that it overrules the decision of P. Ranthinam V. Union of India[31] and held that Article 21 of the Constitution of India that covers right to life does not include right to die. It declared that although the decision taken in Airedale’s case was given approval in the Gian Kaur’s case stating that only legislation can make euthanasia valid, it does not clarify that who should be taken into consideration to decide whether life support system should be discontinued in the case of an incompetent person. 

The court taking into cognizance the various definitions revolving around death and brain death, concluding through the Transplantation of Human Organs Act, 1994 of the Indian law stated that Section 2(d) of the act goes as:

““brain-stem death” means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3” [32] Through this, it was held that Aruna could effectively recognize people around her and that she can easily use her stimulative parts easily, it was confirmed that she was in a permanent vegetative state but her progress has remained stable. Therefore, it was held that Aruna cannot be said to be dead (her brain stem is still alive).

The court decided to follow the technique used in Vishakha case[33] till a law is enacted by the Parliament in regard to legal procedure of withdrawal of life support to a patient in PVS:

  • Either the parents or the spouse or other close relatives or by a person or by a body of persons acting as next friend or the doctors attending the patient can take the decision, nevertheless it should be taken in the best interest. Held in this case the near relatives of Aruna Shanbaug are dead therefore it is the KEM hospital who are the next friend and not Ms. Pinky Virani who has just followed her and written a book on her. Yet, if the KEM hospital changes its mind, the hospital has to apply to the Bombay High Court for the approval of the withdrawal of life support.
  • Hence, if a decision is taken by the doctors or the next friend for withdrawal it should be approved by the High Court. The High Court can approve the withdrawal under Article 226 of the Constitution of India (not only to issue writs but also entitled to issue directions and orders) the court has to follow a procedure and it is thereby ordered to constitute a bench of at least two judges but before that a committee should be appointed of three doctors (a neurologist, a psychiatrist and a physician). The committee shall examine the patient and take the reviews of the hospital staff as well and a notice should also be issued to the State and close relatives and a copy of the report submitted by the panel of doctors. The court laid down that the above procedure shall be followed all over India unless a law is passed in this regard.

In Charan Lal Sahu V. Union of India[34], 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 world it is the state that has the duty to take care of such people.

 The decision of the High Court should be made at a rapid rate and should be in accordance with the principles laid down in the “best interest of the patient” laid down un the Airedale case.

CONCLUSION

Euthanasia or mercy killing cannot be permanently denied therefore passive euthanasia can definitely be thought of. The court also faced the issue like any other country regarding the most perplexing issue, euthanasia: “we feel like a ship in an uncharted sea”. This can be used unscrupulously by people against the patient by the assistance of the doctors, it was the main reason that euthanasia was made illegal in our country and therefore this landmark disposition by the Supreme Court puts an end to all the legal issues revolving around euthanasia.

“Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery.”

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 parens patriae.

[1] Indian kanoon, https://indiankanoon.org/doc/235821/ (last visited Jun. 27, 2022).

[2] Indian kanoon, https://indiankanoon.org/doc/235821/ (last visited Jun. 27, 2022).

[3] Indian kanoon, https://indiankanoon.org/doc/235821/ (last visited Jun. 27, 2022).

[4] Indian kanoon, https://indiankanoon.org/doc/235821/ (last visited Jun. 27, 2022).

[5] Vikram Deo Singh Tomar V. State of Bihar, 1988 Supp SCC 734.

[6]  P. Ranthinam V. Union of India, (1994) 3 SCC 394.

[7] Gian Kaur V. State of Punjab, (1996) 2 SCC 648.

[8] The Constitution of India, 1950, Art.21.

[9] The Constitution of India, 1950, Art. 32(1).

[10]The Constitution of India, 1950, Art. 32(2).

[11] The Constitution of India, 1950, Art. 32(3).

[12] The Constitution of India, 1950, Art. 32(4).

[13] The Constitution of India, 1950, Art. 226(1).

[14] The Constitution of India, 1950, Art. 226(2).

[15] The Constitution of India, 1950, Art. 226(3).

[16] The Constitution of India, 1950, Art. 226(3)(a).

[17] The Constitution of India, 1950, Art. 226(3)(b).

[18] The Constitution of India, 1950, Art. 226(4).

[19] The Indian Penal Code, 1860, § 302.

[20] The Indian Penal Code, 1860, § 304.

[21] The Indian Penal Code, 1860, § 306.

[22] The Indian Penal Code, 1860, § 309.

[23] The Indian Evidence Act, 1872, § 14.

[24] The Indian Evidence Act, 1872, § 39.

[25] The Indian Evidence Act, 1872, § 45.

[26] The Indian Evidence Act, 1872, § 65-B.

[27] The Indian Evidence Act, 1872, § 87.

[28] Airedale N.H.S. Trust V. Bland, (1993) 1 All ER 821 (CA and HL).

[29] Indian kanoon, https://indiankanoon.org/doc/235821/ (last visited Jun. 27, 2022).

[30] Gian Kumar V. State of Bihar, (1996) 6 SCC 241.

[31] P. Ranthinam V. Union of India (1994) 3 SCC 394.

[32] Transplantation of Human Organs Act, 1994, § 2(d), No. 42, Acts of Parliament, 1994 (India).

[33] Vishakha V. State of Rajasthan, (1997) 6 SCC 241.

[34] Charan Lal Sahu V. Union of India, (1990) 1 SCC 613.

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