Case Brief: Aruna Ramachnadra Shanbaug v. Union of India
CORAM: MARKANDEY KATJU; GYAN SUDHA MISRA, JJ. (SUPREME COURT)
CITATION: 2011 KHC 4220: 2011 (1) KHC SN 49: 2011 (1) KLD 388 : ILR 2011 (1) Ker. 913: 2011 (4) SCC 454: AIR 2011 SC 1290: 2011 (3) KLT SN 30
CASE NUMBER: W. P. (Crl.) No. 115 of 2009(UNDER ARTICLE 32 OF INDIAN CONSTITUTION)
COURT: SUPREME COURT OF INDIA
PARTIES: ARUNA RAMACHNADRA SHANBAUG (PETITIONER)
UNION OF INDIA (RESPONDENT)
It was stated that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day, a cleaner found her in an unconscious condition lying on the floor with blood all over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. Thirty six years had lapsed since the said incident. She had been surviving on mashed food and could not move her hands or legs. It was alleged that there is no possibility of any improvement in the condition and that she was entirely dependent on KEM Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let her die in peace.
1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (man authorities would include placement of an artificial feeding tube as a life sustaining intervention) be permissible or ‘not unlawful’?
2. If the patient has previously expressed a wish not to have life – sustaining treatments in case of futile care or a PVS, should his / her wishes be respected when the situation arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life – sustaining treatments, should their wishes be respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf?
To be able to adjudicate upon the aforementioned issues, the court explained as to what is euthanasia. Euthanasia or mercy killing is of two types: active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection 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, or removing the heart lung machine, from a patient in coma.
A further categorization of euthanasia is between voluntary euthanasia and non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non-voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in case of the former, the latter poses several problems. This case dealt with passive non-voluntray euthanasia.
IMPORTANT ARGUMENTS: (PETITIONER AND RESPONDENT)
· To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his behalf (‘substituted judgment’) are to be respected. The surrogate is expected to represent what the patient may have decided had he / she been competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the patient’s best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations.
· Vikram Deo Singh Tomar v. State of Bihar, 1988 KHC 840: 1988 Supp SCC 734 : 1989 SCC (Cri) 66 : AIR 1988 SC 1782 : 1988 BBCJ 109 (vide para 2) where it was observed by this Court: ‘We live in an age when this Court has demonstrated, while interpreting Art.21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen.
· ‘The right to life’ including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the ‘right to die’ with dignity at the end of life is not to be confused or equated with the right to die’ an unnatural death curtailing the natural span of life.
· Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient’s consent commits assault or battery.
· The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.
· Whilst this Court has held that there is no right to die (suicide) under Art.21 of the Constitution and attempt to suicide is a crime vide S.309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur’s case (supra).
· In India abetment of suicide (S.306 Indian Penal Code) and attempt to suicide (S.309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime. 98. The Constitution Bench of the Indian Supreme Court in Gian Kaur v. State of Punjab, 1996 KHC 505 : 1996 (2) SCC 648 : 1996 (2) KLT SN 58 : 1996 SCC (Cri) 374 : AIR 1996 SC 946 : AIR 1996 SC 1257 held that both euthanasia and assisted suicide are not lawful in India.
· However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future.
· A person’s most important organ is his / her brain. This organ cannot be replaced. Other body parts can be replaced e.g. if a person’s hand or leg is amputed, he can get an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when the original one has failed. However, we cannot transplant a brain. If someone else’s brain is transplanted into one’s body, then in fact, it will be that other person living in one’s body. The entire mind, including one’s personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one’s brain. It follows that one is dead when one’s brain is dead.
· WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)
There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha’s case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject. (i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
· In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale’s case (supra) that the approval of the High Court should be taken in this connection.
· In the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.
· UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON:
In our opinion, it is the High Court under Art.226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Art.226(1) of the Constitution states: ‘Notwithstanding anything in Art.32, every High Court shall have power, 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, prohibition, 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.’
· PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED:
When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities / medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government / Union Territory and their fees for this purpose may be fixed.
The Hon’ble Division Bench of the Supreme Court of India, comprising Justice Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on March 7, 2011. The Court opined that based on the doctors’ report and the definition of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. She could breathe without a support machine, had feelings and produced necessary stimulus. Though she is in a PVS, her condition 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 she was surviving. The removal of life saving technique in this case would have meant not feeding her. 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 efforts taken by the nurses of KEM Hospital over the years.
Moreover, in furtherance of the parens patria principle, the Court to prevent any misuse in the vested the power to determine the termination of life of person in the High Court. Thus, the Supreme Court allowed passive euthanasia in certain conditions, subject to the approval by the High Court following the due procedure. When an application for passive euthanasia is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor’s committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.
However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not fit for the same. If at any time in the future, the staff of KEM hospital or the management felt a need for the same, they could approach the High Court under the procedure prescribed.This case clarified the issues revolving around euthanasia and also laid down guidelines with regard to massive euthanasia. Alongside, the court also made a recommendation to repeal Section 309 of the Indian Penal Code. This case is a landmark case as it prescribed the procedure to be followed in an area that has not been legislated upon.
STATUS OF THE JUDGEMENT:
And thus due to this case the passive euthanasia has been made legal in India but not to all under the definition [The term “passive euthanasia” used by the Supreme Court in one of its verdict (on Aruna Shanbaug’s case) is defined as the withdrawal of medical treatment with the deliberate intention to hasten a terminally ill patient’s death] made the person can be subjected to passive euthanasia by under the terms and the regulations made by the medical boards. And later on the bench, comprising of justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, laid down guidelines as to who would execute the will and how the nod for passive euthanasia would be granted by the medical board. Thus SC permits passive euthanasia. In a landmark judgement, the Supreme Court, gave its recognition to passive euthanasia (or more popularly referred as mercy killing).
Euthanasia and its procedure have long history of locking horns as a vexed issue with laws of countries across the world. Every human being of adult years and sound mind has a right to determine what shall be done with his/her own body. It is unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. In patients with Permanently Vegetative State (PVS) and no hope of improvement, the distinction between refusing life saving medical treatment (passive euthanasia) and giving lethal medication is logical, rational, and well established. It is ultimately for the Court to decide, as parens patria, as to what is in the best interest of the patient. An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient’s intent, changes in the law, or simply the unexpected death of the patient despite the administration of lifesustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated..Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient’s death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia. Euthanasia is the intentional premature termination of another person’s life either by direct intervention (active euthanasia) or by withholding life-prolonging measures and resources (passive euthanasia), either at the express or implied request of that person (voluntary euthanasia), or in the absence of such approval (non-voluntary euthanasia). Euthanasia and Physician Assisted Dying: In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/States the latter is legal while the former is not.
Refusing mercy killing of Aruna Shanbaug, a two-judge bench of Supreme Court comprising of justices Markandey Katju and Gyan Sudha Mishra, in a landmark judgement on 7th March 2011, allowed “passive euthanasia” of withdrawing life support to patients in (PVS) but rejected outright active euthanasia of ending life through administration of lethal substances. The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue. The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become “anachronistic though it has become constitutionally valid.” “A person attempts suicide in a depression, and hence he needs help, rather than punishment,” Justice Katju writing the judgement said. The Apex Court noted that though there is no statutory provision for withdrawing life support system from a person in PVS, it was of the view that “passive euthanasia” could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings.
EUTHANASIA IN OTHER COUNTRIES:
1.United States: Active Euthanasia is illegal in all states in U.S.A but physician assisted dying is legal in the states of Oregon, Washington and Montana.
2. Canada: In Canada, Physician Assisted Suicide is illegal vide Section 241(b) of the Criminal Code of Canada.
3. Netherlands: Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act”, 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life.
4. Switzerland: Switzerland has an unusual position on assisted suicide; it is legally permitted and can be performed by nonphysicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it.
5. Belgium: Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002. Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under “constant and unbearable physical or psychological pain” resulting from an accident or incurable illness.
PASSIVE EUTHANASIA BEEN MADE LEGAL IN INDIA?
Indian Legal Scenario: In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India. The Court held that the right to life under Article 21 of the Constitution does not include the right to die. In Gian Kaur’s case the Supreme Court approved of the decision of the House of Lords in Airedale’s case, and observed that euthanasia could be made lawful only by legislation.
Aruna Ramachandra Shanbaug case was landmark case because it came to important conclusions:
1. The Supreme Court of India in its verdict recommended to the Indian Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.
2. The Supreme Court of India also noted that in Gian Kaur’s case although the Court in its previous judgement has quoted with the view of the House of Lords in Airedale’s case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS.
3. Allowing “passive euthanasia” or withdrawing life support to patients in PVS.
4. Laying down strict procedural guidelines for “passive euthanasia” to prevent persons from taking undue advantage.
5. Rejection of “active euthanasia” or ending life through administration of lethal substances as in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, such legislation can prove counterproductive.
6. Since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future.
State of Maharashtra v. Maruty Shripati Dubal, 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 said 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, it was held that the scope of Article 21 includes the ‘right to die’. P. Rathinam held that Article 21 has also a positive content and is not merely negative in its reach
In the case of Gian Kaur v. State of Punjab, the validity of Section 306 of the IPC was in question, which penalised the abetment of suicide. This case overruled P.Rathinam but the court opined that in the context of a 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 the right to live with human dignity must also include a death with dignity and not one of subsisting mental and physical agony.
Reliance was placed on the landmark judgement of Airedale NHS Trust v. Bland, where for the first time in the English history, the right to die was allowed through the withdrawal of life support systems including food and water. This case placed the authority to decide whether a case is fit or not for euthanasia in the hands of the Court.
Also, in the case of Mckay v. Bergsted, the Supreme Court of Navada, after due evaluation of the state interest and the patient’s interest, upheld the permission for the removal of respirator. However, in the instant case, Aruna could breathe by herself and did not need any external assistance to breath and thus, distinguished from the Mckay case.
Author Details: S.Priyanga and V.K.Kavin (Saveetha School of Law)
The views of the author are personal only. (if any)