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Case Comment: Aruna Ramchandra Shanbaug v. Union of India




INTRODUCTION


The Hon’ble Supreme Court on March 9 ruled that individuals had a right to die with dignity, allowing passive euthanasia with guidelines. The need to change euthanasia laws was triggered by the famous Aruna Shanbaug case. The constant, ever-lasting debate on whether ‘Right to Die’ can also be read into this provision still lingers in the air. On the other hand, with more and more emphasis being laid on the informed consent of the patients in the medical field, the concept of Euthanasia in India has received a mixed response. The case further goes on distinguishing between passive and active euthanasia.



FACTS


The case is writ petition under the Article 32 of the constitution and has been filed on the behalf of the petitioner Aruna Ramchandra Shanbhug by one of ‘her next’ friend Ms Pinki Virani of Mumbai. It is stated in petition that the petitioner was a staff Nurse in the 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 mobilize her during the act he twisted the chain around the neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the blood stopped and the brain got damaged. The Neurologist in the hospital found that the cortex of the brain was damaged with brain stem contusion injury, cervical cord injury. It is alleged that she is in persistent vegetative state (PVS) and virtually a dead person and has no state of awareness and her brain is virtually dead. She can neither see, nor can hear anything nor can she expressed herself or communicate in any manner whatsoever. It is alleged that it is not a slightest possibility of any improvement in her condition and her body lies on the bed in the KEM hospital, Mumbai like a dead body person and this has been in this position for last 36 years. The prayer of the petition is that the respondent to stop feeding Aruna and let her die peacefully.[2]



ISSUES RAISED


1. When a person is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies be permissible or `not unlawful’?

2. 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 decision on her behalf?



Analysis


Right to die:

This case is regarded as a constitutional dilemma with whether the Right to life is in conjunction with Right to die or not to die. In the case of State of Maharashtra v. Maruty Shripati Dubal[3], in 1987, the Bombay High Court struck down Section 309 of Indian Penal Code with the contention that it was ultra virus to the Article 21 and 19. The court said the Right to life includes the Right to live as well as Right to end one’s life if one so desires. The court clearly said in this case that right to die is not unnatural. In the case of P.Rathinam v. Union of India[4], it was held that the scope of Article 21 includes the ‘right to die’and also a positive content and is not merely negative in its reach. The Supreme Court also drew a parallel between the other fundamental rights- just as the right to freedom of speech under Article 19 gives the Right to speak, the right to live under Article 21 includes the right to not live. Thus, Section 309 was held to be unconstitutional and criminal penalties for attempt to suicide violate the constitutional right to life. In the case of Gian Kaur v. State of Punjab[5], the validity of Section 306 of the IPC was in question, which penalised the abetment of suicide. Though, the constitutional validity of Section 306 and 309 was upheld. This case overruled P.Rathinam case and held its analogy wrong but also clarified that it will not be looking into the issue of Euthanasia and distinguished between Right to die (unnaturally) and Right to die with dignity (naturally). The case didn’t discuss much about the jurisdiction of Article 21 which lightly exempts it from citation under this case. It mainly revolves around abetment of suicide rather than right to die with dignity which a person in vegetative state holds.


Also the doctrine of sanctity of life followed here is not applicable in capital punishment as the rarest of the rare case dilutes it, which gives right to die in specific cases more strength as it includes person in vegetative state.


Law commission Report on Euthanasia


In the year of 2006, The Law Commission of India released its 196th Report[6] which recommended that there must be a law made to protect terminally ill patients who refuse medical treatment, artificial nutrition, or hydration from Section 309 of the Indian Penal Code. Furthermore, the doctors who obey such a decision of the patient, or who make the decision for incompetent patients in their best interests of such patients, must be protected from punishment under Section 306 of the IPC (abetment of suicide) or Section 299 (culpable homicide). Also such actions of doctors must be declared ‘lawful’. The Law Commission suggested Parliament that the law to be called ‘The Medical Treatment of Terminally Ill Patients (Protection of Patients, Medical Practitioners) Act. But it specifically clarified:

-that the ‘patient’ must be suffering from a ‘terminal illness’.

-It should be persistent and irreversible vegetative condition of the patient.

-The doctor must also consult the family of the patient, but the doctor is the best person to take a clinical decision using his expert medical opinion.

-Before withholding or withdrawing medical treatment in case of incompetent patients and patients who have not taken an informed decision, the doctor must inform in writing to the patient (if he is conscious) and his/her parents or relatives about the decision.



Untouched evidences in court


These guidelines gives authority to family members to contribute there say in the decision of granting peaceful death to their family member. Finally the Verdict on who is the “next friend” of Aruna — the social activist, Pinki Virani, or the nurses at King Edward Memorial (KEM) Hospital in Mumbai who were caring for Aruna. In other words, who is to decide what is in Aruna’s best interest? Should passive euthanasia be initiated, which is what Pinki Virani wanted, or should she be allowed to die naturally when her body had run its course, which is what the nurses wanted? The court, reviewing the stellar care given at KEM, gave a clear verdict that the nurses were the “next friend”. Though what most people also do not realize is that while everyone knows that Aruna Shanbaug was raped that night in the hospital after she had changed into her civvies in an empty operation theatre, the police records and FIR do not mention rape anywhere. The medical examination of Shanbaug testified after a “finger test” that her virginity was intact but the court never took into account the fact that she was sodomized. Though the judgment said “the accused had gone there with the intention to rape” Sohanlal was never charged with rape. He was convicted of attempted murder and robbery because he had stolen a watch and her earrings[7]. According to the Times of India, the then dean of the hospital, Dr. Deshpande chose not to report the anal rape to spare her fiancé public “embarrassment”.


Much is rightly being made of the care and devotion with which several generations of nurses at the KEM hospital took care of their battered and comatose colleague for over four decades. Dignity provided by the nurses but that doesn’t amount to Justice.


JUDGEMENT


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. 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.


In the final judgment, the Bench accepted that active euthanasia, by taking specific measures to cause death, for instance by administering a lethal injection, was indeed a step too far. Because of “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”.


They, however, agreed that passive euthanasia, i.e. withdrawing medical treatment with a deliberate intention of causing the patient’s death, had to be legalized. In a measure of abundant caution, this power was not released as an unfettered and blunt instrument to doctors and families. This is a power that can only be exercised on a case-by-case basis by a state or union territory High Court. To be precise, the order states that “…Article 226 gives abundant power to the High Court to pass suitable orders 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 of the kind above mentioned”. The mechanism would require that in patients seeking passive euthanasia, a Bench of at least two Judges should decide to grant approval or not, and this would be based on the opinion of an empanelled committee of three reputed doctors, preferably a neurologist, a psychiatrist, and a physician.


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.



CONCLUSION


As the case revolved around passive non-voluntray euthanasia, it secured the doctrine of sanctity of life, which is a corner stone of our constitution. Yet it consists of vague legalism through stating the KEM hospital and nurses as true ‘next friend’ and ‘Beneficence’ rather than giving this title to Pinki Virani, with non-consideration of past FIR filed when the hospital itself hid the fact of the victim getting raped and sodomized. Furthermore the right to die is a matter of personal choice rather than life of dignity. Including both under same roof without valid differention caused absurdity to the judgement.


[1] AIR 2011 SC 1290

[2] K D Gaur, Textbook on Indian Penal Code, 749 (6th ed. Universal LexisNexis, 2019)

[3]1987 Cr LJ 743

[4] AIR 1994 SC 1844; 1994 Cr LJ 1605

[5] 1996 AIR 946

[6] Law Commission of India, 196th report on medical treatment to terminally ill patients (protection of patients and medical practitioners) (March, 2006), http://lawcommissionofindia.nic.in/reports/rep196.pdf

[7] Sandip Roy The rapist who never was: Let’s not forget the man who destroyed Aruna Shanbaug’s life, firstpost (May 20, 2015 07:30:41) https://www.firstpost.com/living/the-rapist-who-never-was-let-us-not-forget-the-man-who-destroyed-aruna-shanbaugs-life-2251942.html


Author Details: Shubhangi Gehlot and Sahil Panchal (The Maharaja Sayajirao University of Baroda)

The views of the author are personal only. (if any)


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