CASE COMMENT
Aruna Ramachandra Shanbaug v. Union of
India & Ors on 7 March, 2011
Equivalent citation: - 2011 4 SCC 454
Bench:- Markandey Katju, Gyan Sudha
PETITIONER………………..
“ARUNA RAMACHANDRA SHANBAUG”
V.
RESPONDENT………………..UNION OF INDIA
DATE OF JUDGEMENT- 7
MARCH, 2011
INTRODUCTION
Aruna
Ramachandra Shanbaug v. Union of India[1],
is one of the most renowned cases which urged for the need to change the
Euthanasia laws in India. The Case discussed the constitutionality of Passive Euthanasia
and had checked whether Right to die will come under the meaning of Article 21
of the Indian Constitution. The case also analyzed the question whether section
309 of the IPC 1860 is penal in nature or not. The Hon’ble Division Bench of
Supreme Court comprising of Justice Markandey Katju and Justice Gyan Sudha Misra
delivered the renowned judgment of this Case. Even though the Judgment made in
this case was overruled afterwards this case however has its own significance.
PROVISIONS OF LAW
Article 19 and Article 20 of the Indian constitution, Section 299 of IPC,
Section 306 of IPC and Section 309 of IPC.
FACT OF THE CASE
Here in this Case, the Petition was filed by Ms. Pinki Virani
on behalf of the Petitioner Aruna Ramachandra Shanbaug, who was a staff nurse
working at King Edward Memorial Hospital, Parel Mumbai. She was attacked by a
sweeper in the hospital in an evening on 27th November, 1973. She
was attacked by the sweeper of the hospital who wrapped a dog chain around her
neck and yanked her back with it. The sweeper attempted to rape her but she was
menstruating at that time. Seeing that she was menstruating, he sodomized her.
To immobilize her from doing this act he twisted the chain around her neck.
On the next day morning a cleaner found her
lying unconscious in the floor with blood all over. It is alleged that the
supply of oxygen to the brain has stopped due to strangulation of the dog chain
and the brain has got damaged. She was in a Permanent vegetative state (PVS)
She was still continuing in
Permanent vegetative state (PVS) for the last 37 years and was surviving on
mashed food. She couldn’t move her hands and legs. It was the KEM Hospital
staffs who were treating her for the last 37 years. It was also alleged that
there were no possibility of any improvement and she was completely dependent
on the KEM Hospital. The prayer of the petitioner was to allow passive
Euthanasia for Aruna Ramachandra Shanbaug and let her die peacefully.
ANALYSIS
OF THE DOCTORS APPOINTED BY THE COURT
A counter petition was
filed by the respondent, KEM Hospital. The Court found certain dissimilarities
regarding the condition of the patient mentioned in the petitions filed by the
petitioner and the respondent and the Court has appointed a team of doctors for
studying accurate physical condition of the patient.
After studying the conditions of the Patient
the appointed doctors’ team opined that Aruna is neither brain dead nor in
Coma. She was in Permanent Vegetative State (PVS). PVS is defined as a clinical
condition of unawareness of self and environment in which the patient breathes
spontaneously, has a stable circulation and show cycles of eye closure and opening
which stimulates sleep and wakening. She
is able to take mashed food and a spoon full of water through the mouth. The
doctors also mentioned that KEM Hospital authorities are rendering good nursing
care for her and the staffs also kept her bed and room clean always. The
doctors opined that they do not think there exists a need to terminate her
life.
ISSUES
RAISED IN THIS CASE
1. Whether
Passive Euthanasia can be allowed for a person in Permanent Vegetative State
(PVS)?
2. Who
is the appropriate surrogate of Aruna Ramachandra Shanbaug to decide whether
Passive Euthanasia should be allowed or not?
ANALYSING
VARIOUS ASPECTS
Concept of Euthanasia:-
In this Case the Court had explained the concept of euthanasia. Euthanasia is
of two types, active euthanasia and passive euthanasia. In active euthanasia
lethal substances are injected to kill a person. Passive euthanasia means
withholding of medical treatment which will leads to the dying of the person.
Euthanasia can be further classified into two, voluntary euthanasia and non-voluntary
euthanasia. In case of voluntary euthanasia the consent is taken from the
patient for doing the act. In case of non voluntary euthanasia the patient is
incompetent to take decision so that the consent is unavailable. So this is purely
the case of Passive non voluntary euthanasia.
Right to Die:- In the Case State of Maharashtra v. Maruty Shripati Dubal[2]
the Court struck down Section 309 of IPC and held that it contains ultra virus
to Article 21and 19 and declared that Right to Life guaranteed under Article 21
include Right to live as well as right to die. In the case P. Rathinum v. Union of India[3]
the Court again highlighted the opinion that Right to life include Right to
Die. Thus Section 309 of the IPC was declared as unconstitutional. In another
Case Gian Kaur v. State of Punjab[4],
the Court overruled the judgment made in P.
Rathinum v. Union of India and held that, The Right to life guaranteed
under Article 21 of the constitution does not include Right to die and upheld
the validity of Section 306 and 309 of IPC.
In a famous
English Case Airedale NHS Trust v. Bland[5]
the House of Lords for the first time in the English history permitted the
Right to Die by withholding the life support system of a patient who is in
Permanent Vegetative State (PVS) who was having a severe brain damage. The
court in case of Aruna Shanbaugh’s case noted that even though she is in PVS
but her medical condition is much improved than the patient considered in
Airedale case. In another famous Case, Mckay
v. Bergster[6],
the Supreme Court of Nevada held that, the permission for removal of the respirator
can be considered after considering the State interest and the interest of the
patient. Here in the Case of Aruna Ramachandra Shanbaug the patient is
incompetent to decide whether passive euthanasia should be allowed or not.
One of the important question that arise in
this case is that in a situation where Aruna Shanbaug is incompetent to take a
decision regarding the withdrawal of her life who appears to be the appropriate
surrogate of her to decide regarding the matter of passive euthanasia. The
surrogate here must be a person who will act upon the best interest of the
patient and should not be influenced by other personal convictions, motives and
special interests. Another important problem regarding the legislation of
euthanasia is that the mere legislation of euthanasia itself may leads to wide
misuse of this provision.
Law commission report 2006
The case also had looked into the Law
commission Report of 2006 [7]
which recommended for a law to protect the terminally ill patients who refuse
medical treatment, artificial nutrition from section 309 of IPC. The report
also suggested that the doctors who obey such decisions and acting accordingly
must be protected from offences under section 306 or section 299 of IPC. The
commission also argued that the law must be named as ‘The Medical Treatment of
Terminally ill Patients Act”. The commission also listed certain conditions
such as, the patient must be suffering from a terminal illness, the illness
must be irreversible, The doctor must consider the opinion of the family of the
patient, Although the doctor is the appropriate person to take such a decision
and before withdrawing the treatment of an incompetent patient the doctor must
inform in written to the patient and family.
JUDGMENT
The Hon’ble
Division Bench of Supreme Court comprising of Justice Markandey Katju and
Justice Gyan Sudha Misra delivered the renowned judgment of this Case on March
7, 2011. The Court held that, Aruna Ramachandra Shanbaug is not brain dead. She
is neither in Coma stage also. She is in Permanent Vegetative State (PVS).
Though she is in PVS she is in a stable condition. She could breathe without
the help of anything. She is able to take mashed food and a spoon of water
directly through the mouth. She is also responding to stimulus. Therefore
terminating her life is clearly an unjustified thing.
The court also pointed
out that the management and the staffs of KEM Hospital is the real appropriate
surrogate of Aruna and Ms. Pinki Virani is not the appropriate surrogate. The
right to take decision is vested with the management and staffs of KEM Hospital
because they have taken care of her for the last 37 years. The Court also
appreciated the excellent nursing care delivered by the staffs of KEM Hospital.
Here the life sustain thing of Aruna is the mashed food. And removing the life
sustain treatment here means to stop feeding her. Removing the ventilators and
discontinuing the feeding cannot be considered as equal. When passive euthanasia
is allowed to Aruna then all the excellent nursing care, treatment and efforts
taken by the KEM hospital staffs and doctors will go drain. So, passive euthanasia
cannot be permitted for Aruna.
In the final judgment, the
bench held that active euthanasia cannot be accepted because the low ethical levels
prevailing in our society will leads to the misuse of it. That means immoral
persons with the help of immoral doctors may fabricate material to show that it
is irreversible case with no recovery chance.
The Court however held
that passive euthanasia should be legalized. The power to decide regarding
passive euthanasia is not given to the family or doctors completely. Instead
the court stated that “Article 226 gave power to the High Court to pass suitable
order on the application filed by close relatives/close friend/ doctors/
hospital staff for granting permission to withdraw the life support to an
incompetent person of the kind above mentioned[8]”. A
bench of at least 2 judges must be formed and should decide whether to grant
approval or not, based upon the opinion of the committee of 3 approved doctors appointed
by the court for this purpose.
The court also made a recommendation to repeal Section 309 of IPC. So, Aruna Ramachandra Shanbaug v. Union of India
is clearly a land mark case which had made a procedure that should be followed
for allowing passive euthanasia in case of an incompetent patient.
THE QUESTIONS THAT STILL REMAIN
Although this case clarified upon the circumstances and the steps to be
followed for approval of passive euthanasia the Court didn’t expressly
mentioned about the point whether “The Right to Die with dignity” will come
under the meaning of Article 21 which provides
us “The right to live with dignity”. The Court also didn’t give a suitable
clarification regarding the matter that, if a person is going through a
terminal illness and if he is competent, whether he can decide regarding the
termination of his life or not. The judgment also lacks clarity regarding the
matter that whether Right to live include the concept of right to die with
dignity without suffering unbearable pain during the medical treatment.
Although “The Right to die” has been added to the fundamental right after the
landmark judgment in the Case, Common
Cause v. Union of India[9].
CONCLUSION
Aruna Ramachandra Shanbaug v. Union of India; is a land mark case
because it permitted passive euthanasia to those patients in PVS under
strict procedures. The judgment delivered in this case had clarified; under
what circumstances passive euthanasia can be allowed and also pointed out the
procedure that should be followed by the Court in deciding such a matter. In
this case Court had rejected Active euthanasia and had given the reasons for
that in the judgment. Even though the case had clarified the issues that were
revolving around euthanasia, it is a true fact that still in India we don’t
have an express legislation governing the matter of Passive euthanasia.
Submitted by,
Vishnu Gopal T V
[1] Aruna Ramachandra
Shanbaug vs Union Of India, (2011) 4 SCC 454 (India)
[2] Maruti
Shripati Dubal vs State Of Maharashtra, ( 1987 (1) BomCR 499
[3] PRathinam vs
Union Of India, AIR 1844 SCC (3)
394 (India)
[4] Smt Gian
Kaur vs The State Of Punjab, AIR 1996
SCC (2) 648 (India)
[5] Airedale
National Health Service Trust v Bland, AC
789 (House of Lords )
[6] McKay v
Bergster 801 P2d 617 (Supreme Court of Nevada)
[7] Medical Treatment
To Terminally Ill patients Protection Of Patients And Medical Practitioners (Law
Commission Of India, 196th Report) (
May 8, 2022, 9.30 PM) <http://lawcommissionofindia.nic.in/reports/rep196.pdf>
[8] “Aruna Ramachandra
Shanbaug vs Union Of India, (2011) 4 SCC 454 (India)
[9] Common Cause
v Union of India, (2018) 5 SCC 338 (India)
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