The opportunity for laying down the law of life and death arose for the Supreme Court of India in the writ petition seeking permission to end life of terminally ill ArunaShanbaug, a rape victim lying in a vegetative state for the last 37 years. Disallowing the petition, which means allowing prolonging the life of Aruna, the Supreme Court said passive euthanasia could be permitted only when the High Court offers a considered opinion. It also visualized legalizing of passive euthanasia. The Bench of Justices MarkandeyKatju and GyanSudhaMisra clarified that until Parliament enacts a law, its judgment on active and passive euthanasia will remain in force. This takes us to the recurrent debate of the country’s Parliament to fulfill its obligation of enacting a code for terminally ill patients like Aruna. In recent times, the Government has gone on record saying that it is examining whether a fresh legislation is required to permit passive euthanasia.
The Bench explained the two terms in the following words:
“Passive euthanasia would occur when medical treatment is withheld or withdrawn leading to the death of a terminally ill person. Active euthanasia is generally referred to a state where a patient is given a lethal injection or through any other method allowed to die in presence of doctors, while passive euthanasia involves withdrawing the life support system from a patient…. passive euthanasia can be voluntary and nonvoluntary. It is voluntary if the patient requests mercy killing”.
Passive euthanasia can be voluntary and non-voluntary. Euthanasia conducted with the consent of the patient is “voluntary euthanasia”, which is legal in Belgium, Luxembourg, the Netherlands, Switzerland, and the U.S. states of Oregon and Washington. When the patient bringsabout his or her own death with the assistance of a physician, the term “assisted suicide” is used. If euthanasia is carried out on a patient, who is not in a condition to express his or her desire to die, it is called non-voluntary euthanasia. Examples include child euthanasia, which is illegal worldwide but decriminalized under certain specific circumstances in the Netherlands under the Groningen Protocol. In Colombia, the Supreme Court ruled in favor of mercy killing in 1997 and recommended removing penalties over it, but Colombian Congress did not pass any guidelines. If three or four members of family agree, it is legal in Albania. In 1995, Australia’s Northern Territory had approved a Euthanasia Bill. It went into effect in 1996, but the Australian Parliament overturned the Bill the very next year.
Forms of euthanasia are illegal in Switzerland; and assisted suicide is penalized if it is carried out “from selfish motives”. Ireland opposed active contribution for ending the life while legalizing removal of life support systems. In Mexico, active euthanasia is illegal but since 2008 the law allows the terminally ill to refuse medication or further medical treatment to extend life. Though active euthanasia remained illegal in Norway, it has softened penalties if a caregiver takes the life of someone who is “hopelessly sick” and consents to the act.
The Supreme Court although allowed passive euthanasia under “exceptional circumstances”, it has made clear that active euthanasia is illegal. Referring to the contentions, Justice Katju said:
“There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in Permanent Vegetative State (PVS) or who is otherwise incompetent to take a decision. We agree that passive euthanasia should be permitted in our country in certain situations, and we disagree that it should never be permitted.”
The Apex Court’s conclusion that active euthanasia is not permissible in India is correct. The correctness of court conferring legitimacy on passive euthanasia (after following a prescribed procedure to avoid misuse) is a debatable issue, especially in the light of judgment of the larger Bench of Supreme Court in the case of GyanKaur wherein it is observed that the debate relating to accelerating the process of death in cases where the natural process of death has commenced, is not yet over.
The questions raised in the case are whether Aruna’s present state can be said to be human life, and whether a persistent vegetative state amounts to death? Except saying that there is life in Aruna, the court has not specifically answered the questions. The parameters of human life are not defined. Even doctors who examined Aruna clearly stated that she is in a persistent vegetative state, and that she is not aware of her own existence. This is loss of “Personhood” which means end of human life. The existence of body does not mean existence of person. In short, Aruna is dead, but her body lives.
While deciding on the question of who the ‘next friend’ of the victim is, the Court opined:
“Aruna Shanbaug’s parents are dead and other close relatives have not been interested in her ever since she had the unfortunate assault on her. It is the KEM Hospital staff , who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani, who has only visited her on a few occasions and written a book on her. Hence it is for the KEM Hospital staff to take that decision. The KEM hospital staff has clearly expressed their wish that Aruna Shanbaug should be allowed to live.”
While laying down the principles under which the passive euthanasia could be allowed, the Bench did not leave the issue to the relatives or next friends or medical experts’ team, but rightly preferred the High Court to decide it with judicious application of mind. The Bench suggested that the High Court could pass suitableorders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person. The High Court should seek the opinion of a committee of three reputed doctors to be nominated by it. The committee should carefully examine the patient and also consult the record of the patient as well as take the views of the hospital staff. It should then submit its report to the High Court which should issue appropriate orders on the application seeking withdrawal of life support.
In Aruna Shanbaug’s case, the Supreme Court said that it cannot allow anyone to die by his own hands or at anybody else’s instance. This judgment seems to have been influenced by the country’s present legal system and so the Bench has given a judgment which was according to the expectations of the common people. As a person working on the human rights issues, I do agree that article 21 of the Constitution which talks about right to life cannot be interpreted in any negative sense. In fact life must be conceived positively, but when we talk about right to life, Supreme Court itself has defined that right to life does not mean mere animal existence, but that it includes living with “human dignity”. So accepting the fact that right to life is not inclusive of right to die, even then the question remains what can be the interpretation of living with human dignity. According to my understanding of right based perspective, “right to live with human dignity” means right which cannot be continued and enjoyed till the actual death of any person. So when any person is living a vegetative life and not having any conscious state of mind, we should consider about the ‘process of death’. If the process of death of any person is painful, disgraceful and inhuman, how can we say that we are allowing that person to live with human dignity? It is time for all of us to consider various implications of death which is related to legal, ethical, emotional and voluntary euthanasia.
I do believe that there is difference between “right to die” and “dying unnaturally”. We should not get confused with these two terms. The Supreme Court did a good job in reconfirming (while deciding the issue of locus standi) that any socially motivated person can file a Writ Petition in the interest of wider social justice but it was frustrating to hear all the arguments and the fears expressed by the Supreme Court which was revolving around some hypothetical incidents. There is difference between “willful death” and “mercy killing”, but it seems that the Court failed in taking into consideration the basic difference between these two aspects and procedures. Aruna’s case should have been considered as the rarest of the rare case and she should have been given right to die by way of mercy killing. The Court could have expressly said while giving the judgment that this verdict will not be applicable as a ratio for any other case to minimize the fear in the mind of the courts and the traditional thinkers that the right to die will be misused grossly. Rather than giving permission to willful death under the influence of so-called religious and cultural norms, considering the “right to die” more scientifically and legally, it could have been a step further for the Indian society in the process of progressive and factual thinking. The point is, just because there is no law, we should not neglect various questions related to right to life of persons like Aruna. It will also be inhuman to say that right to die is not a question related to many people. Clearly this is a question related to people like Aruna Shaunbag and the law must have answers for the complexities in the lives of persons like her.
Expressing apprehensions about misuse, the Bench said:
“If we leave it solely to the patient’s relatives or to the doctors or the next friend to decide whether to withdraw life support to an incompetent person, there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. 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.” Professor BM Hegde, Former Professor of Cardiology, Middlesex HospitalMedical School (London) explained: “How does an individual come to the conclusion that an unconscious patient would prefer death to ‘suffering’? How could one kill him/her mercifully (mercilessly)? Until these vexing questions are answered, man should not be authorised to kill another of his species — the ‘so-called’ mercy killing”. In this context, he also quotes Elizabeth Butler and Ruth Richardson, journalist historians, who feel that the modern medical profession has become “a corporate monstrosity.” And that money and power could sway things in any direction!
Principle of sanctity of life was the basis of a judgment of House of Lords in Airedale NHA Trust v Bland reported as (1993) 2 WLR 316, a classic case on euthanasia. Saying that the withdrawal of artificial measures for continuance of life by a physician in the context of existence in the persistent vegetative state of no benefit to the patient, involves the principle of the sanctity of life, the Court made a distinction in such cases:
House of Lords held in this case that it was not lawful to permit a doctor to administer lethal drug to end the life, even though that course is prompted by a humanitarian desire to end his suffering.
In India, the Supreme Court in Gian Kaur case reported at AIR 1996 SC 1257, explained ‘life’ as right to die with human dignity cannot be construed to include within its ambit the right to terminate natural life, at least before the natural process of certain death. Right to die is inherently inconsistent with right to life, as is death with life. The right to die with dignity at the end of life is not to be confused or equated with the right to die unnatural death curtailing the natural span of life. Further, extinction of life cannot be included in ‘protection of life’. Unnatural termination or extinction of life is incompatible and inconsistent with the concept of right to life.
Under the Indian Penal Code, killing a person with his consent or on his request is culpable homicide not amounting to murder. As per section 300 exception 5 of Indian Penal Code 1860, ‘euthanasia’ could be punishable as culpable homicide not amounting to murder. If a person prefers to end his life and attempts it, the same is an offence under section 309. Assisting a person to commit suicide will be another crime, ie, abetment of suicide under section 306. If a doctor administers a lethal injection to suffering patient it could be murder under section 302. If he places poison by his side, the patient consumes it and commits suicide, such doctor is liable for abetment of suicide under 306.
Though Supreme Court held section 309 IPC constitutionally valid, the Bench in Aruna Shanbaug case recommended that the “time has come when it should be deleted by Parliament as it has become anachronistic”. In the view of the court a person who attempts suicide in depression needs help rather than punishment. The Apex Court also noted that in Gian Kaur’s case although the Court has quoted with approval 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 a coma or PVS. Infact this vexed question has been arising often in India because there are a large number of cases where persons go into a coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then thequestion arises who should give consent for withdrawal of life support.
Unhappy with the judgment which mandated Aruna Shanbaug to survive, while permitting passive euthanasia to future victims, the Petitioner (Pinky Virani) explained the agony of Aruna in following words:
“Aruna Shanbaug. Sodomised.Strangled with a dog-chain while being brutalised.Extensive brain stem injury, partially brain-dead. Cortically blind. Cannot speak. Or walk. No control over body movements. Administered mashed food, swallows automatically, upchucks equally. Teeth loosening and falling—one by one— on her bed. In pain.Shrieking.Howling.Weeping.Laughing manically. After the initial days, no medicines prescribed by the doctors, so none given. Abandoned by friends; authorities don’t encourage their visits as they are not blood relatives. Abandoned by relatives; they used to be constantly told by this free hospital to “take her home”. I’ve been told too. I would if I could; but it doesn’t change the fact that Nurse Aruna Shanbaug has every right to remain in that hospital. Hers is a case of aggravated sexual harassment and assault in the workplace. The hospital would have had to pay large cash compensation plus provide permanent care had her relatives been well-educated, not poor, and had access to a responsive legal system.
Abandoned, too, by municipal doctors; and here is the supreme irony. The daily devotion of her nursing colleagues has been so systematically thrust upfront that it has successfully masked the medical mismanagement of Aruna’s case by key municipal doctors. Hypocrites also take the Hippocratic oath. After Aruna was brutally assaulted, no doctor at the hospital was willing to file a complaint that drew attention to the fact that she had been anally raped, even though there are now claimants to “being there first to treat her”. The result: the sodomiser walked free after a mere seven years in jail for robbery. …..And so, equally abandoned by the law”.
Though considered to be a pathbreaking judgment, it is difficult, complex and some times impossible to judge the authority of an individual or group of people to decide about the life or death of another person. As of now the ‘law of euthanasia’ will remain a judicial legislation, until Parliament lives up to the ‘legal’ expectations. The length of time which the various High Courts and finally the Supreme Court might consume, will ultimately decide the length of life of terminally ill patients in PVS. Sadly, for Aruna’s life, this profound law of death makes no difference!
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