Aruna Ramachandra Shanbaug v. Union of India and others
Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. In 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 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 brain stopped and the brain got damaged. The Neurologist in the Hospital found that she had plantars’ extensor, which indicated damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. 36 years had expired since the incident and Aruna Ramachandra Shanbaug was about 60 years of age. It was alleged that Aruna Ramachandra Shanbaug was in a persistent vegetative state (p.v.s.) and virtually a dead person and had no state of awareness, and her brain was virtually dead. It was alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of the petitioner was that the respondents be directed to stop feeding Aruna, and let her die peacefully.
Whilst the Supreme Court had held earlier that there was no right to die (suicide) under Article 21 of the Constitution and attempt to suicide was a crime vide Section 309 IPC, the Court had held that the right to life include the right to live with human dignity, and in the case of a dying person who was terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in the circumstances and it was not a crime. Discussing the concept of Euthanasia, it observed that Euthanasia is of two types: active and passive. Active euthanasia entail 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 entail 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. The general legal position all over the world seem to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.
The difference between “active” and “passive” euthanasia is that in active euthanasia, something is done to end the patient’s life’ while in passive euthanasia, something is not done that would have preserved the patient’s life. An important idea behind this distinction is that in “passive euthanasia” the doctors are not actively killing anyone; they are simply not saving him.
Euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die, and for this purpose he consciously and of his own free will refuses to take life saving medicines. In India, if a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. The present is a case where we have to consider non voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.
Culminating the discussion the Supreme Court held that the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient’s best interest, the said act cannot be regarded as a crime.
The question remained as to who is to decide what is the patient’s best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive.
It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, had inherited the parens patriae jurisdiction which formerly belonged to the King.
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 Supreme Court recommended to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.
It was alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug was already dead. The question to be decided was as to when a person could be said to be dead ? After considering the report of Committee of doctors, the Supreme Court held that Aruna had some brain activity. She also recognized that persons are around her and expressed her like or dislike by making some vocal sound and waving her hand by certain movements. Aruna Shanbaug met most of the criteria for being in a permanent vegetative state. From the examination by the team of doctors, it could not be said that Aruna Shanbaug was dead. The next question was whether her life support system should be withdrawn, and at whose instance? The Supreme Court observed that there is no statutory provision 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. It held that passive euthanasia should be permitted in certain situations.
The Supreme Court laid down the following law until Parliament made a law on the subject:
(i) A decision had 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 could be taken even by a person or a body of persons acting as a next friend. It could also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the
In the present case, the Supreme Court held that KEM hospital staff were really Aruna’s next friend and it was for the KEM staff to take a decision and the KEM staff had clearly expressed their wish that Aruna Shanbaug should be allowed to live.
(ii) Hence, even if a decision was taken by the near relatives or doctors or next friend to withdraw life support, such a decision require approval from the High Court concerned.
In the opinion of the Supreme Court, 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, the approval of the High Court should be taken. This would also be in consonance with the doctrine of parens patriae. The Supreme Court observed that Article 226 gave 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.
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. The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench. Simultaneously with appointing the committee of doctors, the High Court Bench should 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. The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which should not be summary in nature. With these observations, the petition was dismissed.