IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 115 OF 2009
Aruna Ramchandra Shanbaug - Petition
-VS.-
Union of India and others - Respondents
Bench – Markandey Katju, Gyan Sudha Misra
Citation – (2011) 4 SCC 454
COURT – Supreme Court of India
BACKGROUND
Article 21 of India's constitution guarantees the right to life to all people. Although the notion of euthanasia is widely accepted in Western countries, it has received a mixed reaction in India. Furthermore, since the right to live is a basic right, shouldn't the right to die be included as well? This is a perennial dispute.In the current case, the Hon'ble Supreme Court of India was presented with a petition under Article 32 of the Indian Constitution to examine the death of Aruna Ramchandra Shanbaug, who was in a persistent vegetative condition. Ms Pinki Virani, her "next friend," filed the petition.
In every previous instance, the Court has categorically rejected the right to die. The Supreme Court, however, recognized the severity of the problem and accepted the petition to rule on e-cigarettes' position.
FACTS
The petitioner, Aruna Ramachandra Shanbaug, was described as a staff nurse at King Edward Memorial Hospital in Parel, Mumbai. She was assaulted by a hospital sweeper on the evening of November 27, 1973, who placed a dog chain around her neck and dragged her back with it. He attempted to rape her, but when he discovered she was menstruation, he sodomized her instead. He wrapped the chain around her neck to immobilize her throughout the deed. The following day, a cleaner discovered her asleep on the floor with blood all over her. The supply of oxygen to the brain was said to have been cut off as a result of the dog chain strangulation, causing the brain to be injured.
It had been 36 years after the aforementioned occurrence. She couldn't move her hands or legs and was living on mashed food. It was said that there was no chance of her health improving and that she was completely reliant on KEM Hospital in Mumbai. It was requested that the Respondents cease feeding Aruna and allow her to die in peace.
ISSUE
1. Should withholding or withdrawing life-sustaining treatments be permitted or 'not illegal' when a person is in a persistent vegetative state PVS?
2. Should the patient's wishes be honoured if he or she has previously stated a desire to avoid life-sustaining therapies in the event of futile care or a PVS?
3. Should a person's family or next of kin make a request to withhold or discontinue ineffective life-sustaining therapies if he or she has not previously indicated such a wish?
ARGUMENT
A counter petition was filed by the respondents, KEM Hospital and the Bombay Municipal Corporation. Because there were discrepancies between the petitioner's and respondents' petitions, the court decided to establish a team of three distinguished physicians to examine and report on Aruna Shanbaug's precise medical and mental conditions.
They thoroughly examined Aruna Shanbaug's medical history and concluded that she is not brain dead. She has her own style of reacting to particular events. She like mild religious music and fish dishes, for example. She becomes agitated when there are a large number of people in the room. When there are less people around her, she feels at ease. KEM Hospital's personnel was providing her with adequate treatment. She was kept spotless at all times. They also didn't see anything in Aruna's body language that suggested she was willing to end her life. Furthermore, the nurses at KEM Hospital were more than happy to assist her. As a result, the physicians believe that euthanasia is not required in this case.
DECISION
On March 7, 2011, the Supreme Court of India's Hon'ble Division Bench, consisting of Justice Markandey Katju and Justice Gyan Sudha Mishra, handed down this decision. The court ruled that Aruna is not brain dead, basing its decision on a doctor's report and the concept of brain death set out in the Transportation of Human Organs Act of 1994. She was able to breathe without the assistance of a machine, she had sensations, and she used to exhibit certain symptoms. Despite the fact that she was in a PVS, her status remained constant. As a result, the reasons stated here are insufficient to put an end to her life. It would be inexcusable. Furthermore, the court said in its decision that the employees of the KEM Hospital, not Pinki Virani, would be next to the patient's family in this circumstance. As a result, KEM Hospital has the authority to make such decisions on her behalf. It was the food that she was living on in this situation. As a result, removing life-saving procedures would imply depriving her of nourishment, which is not justified in any manner under Indian law.
In some circumstances, the Supreme Court permitted passive euthanasia. However, in order to avoid future abuse of this provision, the court ruled that the authority to decide on a person's death would be subject to approval by the High Court after a proper process.
Whenever an application for passive euthanasia is submitted in the High Court, the Chief Justice of the High Court should convene a Bench of at least two judges to decide whether such a termination should be allowed or not. Before making any decision, the Bench shall consult with a committee of three reputable physicians. The Bench also nominates these physicians after consulting with the proper medical professionals. Along with creating this committee, the court must also send notification to the state, family, kins, and friends, as well as a copy of the report prepared by a committee of physicians, as soon as feasible. The court should then render its decision after hearing all parties. This practice must be followed across India until legislation on the matter is approved.
ANALYSIS
Euthanasia
Euthanasia, as we all know also called as mercy killing, is an act or practice of painlessly putting to death those suffering from agonizing and incurable sickness or incapacitating bodily ailment or allowing them to die by withholding treatment or removing artificial life-support measures. It may be of two sorts Active or Passive. Active Euthanasia is the employment of some hazardous drug or fatal ways to kill a person. Passive Euthanasia is ceasing certain medical care in the absence of which a person is likely to die. The passive euthanasia may be both elective and involuntary. Where the permission from a patient is obtained it becomes voluntary and in circumstances when a patient is not in a position to grant consent and the decision on his/her behalf is made by some other person, then it is involuntary.
In Aruna Shanbaug’s case Supreme Court provided out parameters for passive euthanasia. These recommendations given for removal of life support system which may eventually lead to a person’s death. This ruling made passive euthanasia permissible in India under specific instances which would be determined by the High Court. Later in the year 2018, Supreme Court passed another order in the case of Common Cause v. Union of India, in which right to die with dignity was again recognized and passive euthanasia was legalized and permit was given to withdraw the life support system of those who are terminally ill and are in life long coma. Along with this the Court also presented with the notion of “living wills”.
Living will - it is a document that enables a person to make choices in advance with respect to what course of treatment he wants in case he becomes extremely sick in the future and becomes unable to take decisions. Thus, India is now one of the nations in the world which has accepted Passive Euthanasia. But there are still gaps in the implementation of passive euthanasia. As following Shanbaug case, it was deemed obligatory to acquire High Court’s approval before every case, hence it was a laborious procedure. And now in this new ruling it has been made tougher to give passive euthanasia an effect since now it needs execution of the directive in front of two witnesses, verification by a Judicial Magistrate, consent from two Medical Boards and a jurisdictional collector. Thus, this delay is a huge obstacle getting in the way, as it negates the fundamental objective of passive euthanasia which is to stop the suffering of the person involved but on the other hand if the method is made too liberal and simple it ia always prone to a great abuse. Thus, we can see from both sides there are challenges and concerns involved and what we need is a better way out of this all in order to make the notion of passive euthanasia successful and efficient
Right to Die with Dignity
Our constitution and legislation unambiguously provide for Right to life to all its people. It is an absolute right protected by Article 21 of the constitution and there are no questions when it comes to the right to life. The courts in separate rulings have understood it differently and have founded their judgement accordingly. Court explicitly said in this verdict that Right to die is only rare not unnatural. Subsequently in P. Rathinam v. Union of India the Supreme Court likewise acknowledged that Right to life also encompasses Right not to live under Article 21 of our Constitution. But later in a case Gian Kaur v. State of Punjab, the Supreme Court reversed the P. Rathinam’s ruling and held that Right to life does not include Right to die but at the same time court also stated that Right to life would encompass living with human dignity and the right to die with dignity. The court concluded that the right to die with dignity should be differentiated from Right to die. As right to die is an unnatural death which takes away natural span of a person’s existence, on the other hand the right to die with dignity is a sustenance offered to a person. For instance, a person who is in a situation of PVS, if offered the right to die, it would cease his suffering, bodily and emotional torment.
Hence, both these rights are completely separate and should not be misinterpreted. Various governments in the globe regard “Right to Die with Dignity” as a vital right for a person, therefore offering a means for passive euthanasia.
This article is written by Mridula Pandey of Symbiosis Law School Pune.