Introduction
ARUNA RAMACHANDRA SHANBAUG V. UNION OF INDIA: The Living Buddha of Tibet, Dalai Lama Quotes that ‘The Purpose of Our Lives is to be Happy’ so, can a life without happiness be termed as a ‘Living Corpse’? Dignity is the cloth which covers the naked body. The Constitution of India guarantees its citizens “Right to life”. Whether “Right to Die” is implicit is still debatable. Such right was brutally ripped from our Protagonists Aruna Shanbaug during her period. Euthanasia is a practice of ending one’s life intentionally to release them from pain and sufferings. Today, Aruna is one of the main reason, that passive euthanasia is legal in India.
FACTS
It was contended that Aruna Shanbaug was a Nurse in the King Edward Memorial Hospital, Mumbai. On 27th November, 1973 while she went to change her uniform, a sweeper of the same hospital Sohanlal Valmiki had strangled her neck using a dog chain which in turn cut the oxygen supply to the brain and got the nerves damaged and tried to rape her and since she was found menstruating he sodomized her and stole her earing’s and immobilized her. She was a virtually dead person and was in a permanent Vegetative state for next 36 years. She was looked after the nurses at the same hospital.
INTERPRETATION
Euthanasia/mercy killing is of two types, Active Euthanasia is where a lethal substance or some force is used to kill a person who is suffering from pain and illness. Passive Euthanasia is to withhold from doing medical treatment or anything which leads to death. In parts of the world Active Euthanasia is illegal unless it’s permitted by law. In India it is illegal. A voluntary Euthanasia is where consent is brought from the patient and a Non-Voluntary Euthanasia is where the consent is unavailable. The case of Aruna Shanbaug is Passive non-voluntary Euthanasia.
Fundamental rights are very important to lead a dignified and fulfilling life. Article 21 of the Indian Constitution says, “No Person shall be deprived of his Life or Personal Liberty except according to Procedure established by Law”. According to this Article, Passive Euthanasia seems to be Violative of the Constitution ripping this major Fundamental Right. But in this case, Article 21 should be read in different Light.
Through Article 32, the honourable Supreme Court was approached regarding the termination of life of Aruna. Taking the importance of the subject matter and the public interest on euthanasia, the petition was accepted. The court appointed Doctors for medical examination where they said that she was not brain dead as she was responding to her favourite music, ate smashed food and reacted well and the doctors opined that euthanasia is not necessary.
- RIGHT TO LIVE WITH DIGNITY Vs. RIGHT TO DIE WITH DIGNITY
In state of Maharashtra v. Maruty Shripati Dubal[1], court held that right to die is unnatural, abnormal and not common and held that Section 309- punishment for Attempt to commit suicide of IPC was unconstitutional. Justice Bhagwati held that “The Fundamental Right of every person in this country to live with Human dignity which is free from exploitation. This right to live with Human Dignity is enshrined under article 21 drives its life breathe from the DPSP”[2]
In Ratinam V. Union of India[3], it was held that “Criminal penalties for suicide violate the constitutional right to life by giving double punishment; specifically arguing, women who attempt suicide after abuse cannot be criminally penalized for their attempt. Freedom of Speech under 19 of the Constitution gives a Right to speak, which includes Right Not to speak. Likewise, the Right to Live under Art 21 includes the Right not to Live, So Punishing under Section 309 of IPC is Unconstitutional”.
In the case of Gian Kaur V. State of Punjab[4], Gian and her husband were convicted under Section 306 Abetment of Suicide and 309 of IPC and was sentenced for 6 Years Imprisonment and Fine of Rs.2000. The Supreme Court overruling the P.Ratinam case held that, “It was wrong on the Analogy that other fundamental rights include the ‘Right not to’. Right not to speak is an omission while taking a Life is an act.” So, in context of terminally ill or PVS; right to die is not a termination of life, but it is just accelerating the death process which has already commenced.
- 196thLAW COMMISSION REPORT
In 2006, Law Commission report recommended “The Medical Treatment of Terminally Ill Patients (Protection of Patients, Medical Practitioners) Act, to protect terminally ill patients who refuse medical treatment, artificial nutrition or hydration from Section 309 of the IPC and also protects the Doctors from the Section 309 and Section 299 for taking decisions for incompetent patients or agreeing with patients who pleads to die.
The Report says, patient must suffer from a terminal illness and such illness/injury, of a physical/mental condition causing extreme pain and sufferings; and a medical opinion if the patient is in persistent irreversible vegetative state. The report further says that The High Court can be approached by patient, parents, relatives, doctors or hospitals and decision of the court must be beneficial to the patient, doctors and the hospital. The High court must pass an order as quick as possible once filed.
Considering the consent of the patient, in this case, Aruna could not give her consent and thus the question arised as to whom can give consent on her behalf. This was done based on beneficence which means to act for the patient’s best interest. The right to take decision on behalf of Aruna rests with the KEM hospital and management staffs and not Pinki Virani and considered KEM hospital staff as “next friend”. Court also said that Allowing Euthanasia to Aruna would reverse the efforts of the nurse taken for these many years.
The Supreme Court laid down procedures and guidelines for Passive Euthanasia. It held that an application should be filed before the Chief Justice of High-court and they would constitute a minimum two judge bench to grant/deny approval in consultation with a committee of three reputed doctors. A notice should be served to patient, parent, spouse, brothers/sisters and in their absence to his/her next friend. It also recommended to repeal Section 309 of IPC. However, Aruna was denied euthanasia and she died due to Pneumonia on 18th May, 2015 and Valmiki was charged for attempted murder and robbery and was sentenced to seven-year imprisonment which was reduced to 6 years later and still claims that he did not rape Aruna.
In 2002, Common cause addressed the issue of Right to die with dignity before the Ministries. In 2005 under Article 32, The Supreme court was approached with respect to Article 21. On March 2018, a five Judge bench, held that right to die with dignity is a fundamental right. It held that “An individual’s right to execute advance medical directives is an assertion of the right to bodily integrity and self-determination and does not depend on any recognition or legislation by a state”.[5]
By
T.S. Indira Gandhi*, N. Kalaivani**
*Tamilnadu Dr. Ambedkar Law university, III-year LLB(Hons),indirasuryakumar@gmail.com
** Tamilnadu Dr. Ambedkar Law university, III-year LLB(Hons), kalaivani15795@gmail.com
[1] 1987 (1) BomCR 499, (1986) 88 BomLR 589
[2] Bandhua Mukti Morcha V. Union of India- 1984 AIR 802,1984 SCR (2)67
[3] 1994 AIR 1844,1994 SCC (3) 394
[4] 1996 AIR 946,1996 SCC (2) 648
[5] Common Cause V. Union of India