This Case Summary is written by Arfa Aslam Khan, a student at School of law, University of Kashmir
The case of Aruna Ramchandra Shanbaug is one of the most famous and intriguing cases in the Indian judicial history which legalized passive euthanasia and recognized that an individual has a ‘right to die with dignity’ and this right comes within the ambit of ‘right to life ‘ guaranteed under Article 21 of the Constitution of India.
Passive euthanasia refers to the withdrawal of medical treatment with the deliberate intention to hasten the death of a terminally ill patient and thereby relieving him of the pain and agony of living live that is meaningless.
The case strengthened the demand fro a sensible law on passive euthanasia and assisted suicide. Till that time the courts in India had on various occasions tried to dodge the issue. This case posed a series of uncomfortable questions to the people as a society which had till thet time been perceived just as medico legal issues. As of now only four European countries (Switzerland, Belgium, Netherlands, & Luxembourg) allow fro assisted suicide, where patients are given lethal doses of killer drugs to end their lives. In the present case the Supreme Court upheld the validity of passive euthanasia but denied assisted suicide by the administration of fatal injections. The case was a reminder that India can no longer afford to put the issue off the back burner.
FACTS OF THE CASE
The case reached the Supreme Court by a petition filed by Ms Pinki Virani claiming to be the next friend of the petitioner Aruna Shanbaug. Aruna was a nurse working at King Edward Memorial (KEM) Hospital, Mumbai. She was sexually assaulted on the night of 27th November, 1973 by a sweeper of the same hospital namely Sohanlal who attacked her with an intention to rape her. During the attack, Shanbaug was strangled with a dog chain while she was being sodomized. To immobilize her during the brutal act, he twisted the chain around her neck which led to the deprivation of the oxygen supply to her brain. On the following day she was found lying in a pool of blood by the cleaner of the hospital. She was treated at KEM Hospital following the incident where she remained in a permanent vegetative state (PVS) until her death of pneumonia in 2015. During the course of these years she was force-fed by a feeding tube to keep her alive.
ISSUES BEFORE THE COURT
The following were the issues before the Supreme Court:
- Whether the withdrawal of life support for a person who is in permanent vegetative state (PVS) is lawful/ permissible?
- Should a living will of patient be respected in such situations?
- Does the family or next of the kin of a person have a right to make a request to withdraw life supporting system in case a person himself has not made such a request previously?
CONTENTIONS OF THE PETITIONER
The journalist-activist Pinki Virani on behalf of the petitioner asked for the legalization of euthanasia so that Aruna’s continued sufferings could be brought to an end by withdrawal of medical support. Her contention was that Aruna had no chance of recovery as she had been in the permanent vegetative state (PVS) for decades & thus she should be relieved of her pain and agony.
CONTENTIONS OF THE RESPONDENT
Responding to the petition filed by Pinki Virani, the respondent parties i.e. KEM Hospital & Bombay Municipal Corporation filed a counter petition opposing euthanasia for Aruna Shanbaug. Aruna had a long association with the nurses of KEM Hospital. They had been taking good care of her & were happy to do so for the remaining days of her life. They believed that allowing euthanasia for Aruna would put all their efforts into drain.
FINDINGS OF THE COURT
The Supreme Court in order to have a better understanding of the whole situation constituted a team of 3 eminent doctors to report on the physical and mental condition of Aruna Shanbaug. After examining her, the appointed doctors’ team concluded that Aruna was neither brain dead nor in coma. She could respond to external stimuli, had feelings and was able to breathe without the support machine. Her condition was quite stable. She was in a permanent vegetative state (PVS)-a condition of unawareness of self and surroundings. She survived on mashed food poured directly into her stomach through a nasal pipe and the hospital authorities were taking good care of her and therefore there was no need to end her life.
The Supreme Court was put in a very difficult situation to decide the constitutionality of passive euthanasia. The court allowed passive euthanasia in certain conditions, subject to the approval of the High Court. It was held that whenever an application is filed in the High Court for passive euthanasia the Chief Justice of the High Court would constitute a 2 judge bench to decide the matter whether or not such termination should be granted. The 2 judge bench had to seek the opinion of a committee of three reputed doctors nominated by it after consultation of the medical authorities and practitioners required for the purpose..
The court however keeping all the facts in mind denied Aruna Shanbaug euthanasia. The court however left it open for the hospital staff at any time to approach the HC under the prescribed rules in case they felt a need for the same.
Further the court found that in the present case the next of the kin of the patient would be the KEM hospital that has been taking care of her since the incident and not Pinki Virani and therefore any right to take any decision on her behalf was vested in the hospital.
REASONING OF THE COURT
The Court while delivering the judgment distinguished between active and passive euthanasia. It observed that causing the death of a person who is in ‘persistent vegetative state’ with no chance of recovery, by withdrawing artificial life support is not a” positive act of killing” which couldn’t be allowed considering the facts of each case. The withdrawal of life support by doctors is considered as an omission & not a positive step to terminate life.
The Supreme Court had to deal with another issue & that was the constitutionality of Section 309 I.P.C. Section 309of Indian Penal Code is a penal provision that provides punishment for an attempt to commit suicide. In the Bombay High Court struck down Section 309 of I.P.C and held that it was ultra-vires of Article 19 & 21. The court further opined that “right to life includes the right to live as well as right to end one’s life if one so desires.”
In the case of the Supreme Court held Section 309 I.P.C to be violative of Article 21 of the Constitution. The court held that this provision needs to be effaced from the statute book as “it is a cruel & irrational provision & may result in punishing a person doubly who has suffered agony & would be undergoing ignominy because of his failed attempt to end his life.” The court also remarked that life under Article 21 includes the right to live with human dignity and not mere material existence in person.
However in the five-judge Constitution Bench of the Apex Court held Section 306 &309 of IPC to be constitutionally valid and observed that right to life doesn’t include right to die. it was in this case that the court held that the right to life guaranteed under Article 21 doesn’t include right to die.
Aruna Shanbaug was denied euthanasia because the court held that ‘right to die with dignity at the end of life is not to be equated with the right to die an unnatural death by curtailing the natural span of life’. The Supreme Court, however, affirmed that in a case of a dying person or a person who is terminally ill or in PVS he may be permitted to terminate it by a premature extinction of his life in these circumstances and is not a crime keeping in view the Gian kaur’s case
DISPOSITION AND THE POSITION AHEAD
The judgment was passed by the Hon’ble Division Bench of the Supreme Court of India consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra. Interestingly articulated by Justice Markandey Katju was a couplet of Mirza Ghalib
“Marte hain aarzoo main marne ki
Maut aati hai phr bhi nahi aati”
In 2014, Aruna Shanbaug’s judgment was termed inconsistent by a three judge bench of the Supreme Court & the issue of euthanasia was referred to its five-judge Constitution Bench.
In the case of the Constitution Bench led by the then Chief Justice of India Dipak Misra upheld that the fundamental right to life and dignity includes “right to refuse treatment and die with dignity.” The court further observed that the key to meaningful existence vested in the individual’s freedom to choose to die with dignity
The concept of living wills was also solidified in this judgment. The Court held that advance medical directives (living wills) would be quite fruitful to facilitate the fructification of the sacrosanct right to live with dignity. The Constitution Bench viewed that the said directive would dispel any doubt at the relevant time of need during the course of treatment of the patient. The Supreme Court in this judgment aid down a detailed procedure for the execution of living wills which is quite cumbersome, tedious and not easy to adhere to. However this judgment was a good beginning to address a new concept which was not touched in the past.
At the outset, the judgment fails to address many serious issues. The first being that it altogether ignores that in Aruna Shanbaug’s case the “right to live” was a privilege. She was a privileged nurse to be receiving this treatment while others facing a disease far worse than her would have long ago died. The Court chose to remain silent on an issue which was likely to become extremely vexatious in the times to come.
A serious question is raised that ‘Can one person be allowed to block a bed for 37 odd years & thus deprive other patients of medical treatment which could save their lives, in country like India which lacks the basic medical infrastructure & a proper medicare?”
It is but evident that had Aruna not been a nurse of KEM Hospital she would not have been looked after and cared for like this.
Ordinarily it is a general convention worldwide that beds are reserved fro patients whose ailments can be addressed and cured, whether totally or partially. Hospitals are in no case residence of the patients. Judiciary ought to have put its emotional reactions aside because it taints the judicial process. Also providing treatment to patients in an incurable condition just because they are they are privileged is dangerous as well as discriminatory and also drains the state of ist resources.
Second, the judgment gave a legal sanction to passive euthanasia although it was always practiced behind closed doors and thus the facade of laying down a legal procedure hardly serves any purpose.
Generally when a patient is terminally ill it is recommended by the family doctors that the patient be kept at home at given treatment there so that he can die in the least painful manner and this approach is very much sensible and humanitarian.
Also the Court expects that in each application for euthanasia the petitioners should approach the respective High Court. However no sane family would approach Courts and wait for years to get Court’s ratification. This has thus rendered this judgment unfructuous.
Third, on one hand the Court recognizes attempt to suicide under Section 309 I.P.C as punitive but on the other hand that a patient has a right to refuse treatment even if this results in cutting short his life span. This is so bizarre.
Fourth, even in cases where a person dies of starvation, it is invariably stated in the death certificate that the person died of natural cause.
It is the responsibility of the State to provide and fulfill the Right to life. Thus when a State fails to perform its responsibility, shouldn’t the officer and govt. officers be held accountable under Section 306 I.P.C (abetment to suicide) for allowing the person to die?
Although the Supreme Court embarked upon the cumbersome journey to minimize the chances of misuse of euthanasia, however, there is a highly dangerous aspect that its abuse may be easily made undetectable. Although euthanasia appears to be morally justifiable, but its fool-proof applicability is close to impossible. India needs the maturity top handle the issue & to understand its pros and cons thoroughly. There is a need to take the recommendations laid down by the Law Commission into consideration and frame a law to prevent malpractices and its misuse.