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Aruna Ramchandra Shanbaug v.

Union Of
India: Case Analysis
January 7, 2015 by kudrat Leave a Comment
By Mounica Kasturi, Symbiosis Law School, Pune
Editors Note: Fundamental Rights are necessary for leading a dignified and fulfilling life.
Probably the most important Fundamental Right in the Indian Constitution is the Right to
Life under Article 21. It is a right that encompasses within its broad domain the right to legal
aid, right to a clean environment, and a plethora of other rights. The question that came to be
considered in the present case was whether inherent in this sacred right is the right to diewhether a person can be allowed to control his death and decide to end his life. Right to die
has become important considering the advancement in medical jurisprudence and also the
possibility of misuse of this right by family members. This case dealt with euthanasia in detail
by distinguishing between active and passive euthanasia. Laws relating to euthanasia in
different jurisdictions were considered. The court deleted into a scenario where the patient
was incapable of giving consent and specified who could approach the Court on his behalf.
It also laid down guidelines prescribing the situation and procedure of administering passive
euthanasia.

INTRODUCTION
The Constitution of India guarantees Right to Life to all its citizens. The constant, everlasting 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 Honble Supreme Court of India, in the present matter, was approached under Article 32
of the Indian Constitution to allow for the termination of the life of Aruna Ramchandra
Shanbaug, who was in a permanent vegetative state. The petition was filed by Ms. Pinki
Virani, claiming to be the next friend of the petitioner. The Court in earlier cases has clearly
denied the right to die and thus legally, there was no fundamental right violation that would
enable the petitioner to approach the court under Article 32. Nonetheless, the Supreme Court
taking cognizance of the gravity of the matter involved and the allied public interest in
deciding about the legality of euthanasia accepted the petition.

FACTS
It was stated that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in
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 immobilize her during this act he twisted the chain around her neck. The
next day, a cleaner found her in an unconscious condition lying on the floor with blood all

over. It was alleged that due to strangulation by the dog chain the supply of oxygen to the
brain stopped and the brain got damaged.
Thirty six years had lapsed since the said incident. She had been surviving on mashed food
and could not move her hands or legs. It wass alleged that there is no possibility of any
improvement in the condition and that she was entirely dependent on KEM Hospital,
Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let her die in
peace.

FINDINGS OF THE COURT APPOINTED DOCTORS


The respondents, KEM Hospital and Bombay Municipal Corporation filed a counter petition.
Since, there were disparities in the petitions filed by the petitioner and respondents, the court
decided to appoint a team of three eminent doctors to investigate and report on the exact
physical and mental conditions of Aruna Shanbaug.
They studied Aruna Shanbaugs medical history in detail and opined that she is not brain
dead. She reacts to certain situations in her own way. For example, she likes light, devotional
music and prefers fish soups. She is uncomfortable if a lot of people are in the room and she
gets distraught. She is calm when there are fewer people around her. The staff of KEM
Hospital was taking sufficient care of her. She was kept clean all the time . Also, they did not
find any suggestion from the body language of Aruna as to the willingness to terminate her
life. Further, the nursing staff at KEM Hospital was more than willing to take care of her.
Thus, the doctors opined that that euthanasia in the instant matter is not necessary.

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. If the patient has previously expressed a wish not to have life-sustaining treatments in
case of futile care or a PVS, should his/ her wishes be respected when the situation
arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin
makes a request to withhold or withdraw futile life-sustaining treatments, should their
wishes be respected?

ANALYSIS
To be able to adjudicate upon the aforementioned issues, the court explained as to what is
euthanasia. Euthanasia or mercy killing is of two types: active and passive. Active euthanasia
entails 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 entails 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.
A further categorization of euthanasia is between voluntary euthanasia and non-voluntary
euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non-

voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or
is otherwise unable to give consent. While there is no legal difficulty in case of the former,
the latter poses several problems. The present case dealt with passive non-voluntray
euthanasia.

RIGHT TO DIE
In the case of State of Maharashtra v. Maruty Shripati Dubal,[i] the contention was that
Section 309 of the Indian Penal Code was unconstitutional as it is violative of Article 19 and
21. It was held in this case by the Bombay high court that right to life also includes right to
die and section 309 was struck down. The court clearly said in this case that right to die is
not unnatural; it is just uncommon and abnormal. In the case of P.Rathinam v. Union of India,
[ii] it was held that the scope of Article 21 includes the right to die. P. Rathinam held that
Article 21 has also a positive content and is not merely negative in its reach. In the case of
Gian Kaur v. State of Punjab,[iii]the validity of Section 306 of the IPC was in question,
which penalised the abetment of suicide. This case overruled P.Rathinam but the court
opined that in the context of a terminally ill patient or one in the PVS, the right to die is not
termination of life prematurely but rather accelerating the process of death which has already
commenced.[iv] Further, it was also submitted that the right to live with human dignity[v]
must also include a death with dignity and not one of subsisting mental and physical agony.
Reliance was placed on the landmark judgement of Airedale NHS Trust v. Bland,[vi] where
for the first time in the English history, the right to die was allowed through the withdrawal of
life support systems including food and water. This case placed the authority to decide
whether a case is fit or not for euthanasia in the hands of the Court. Also, in the case of
Mckay v. Bergsted,[vii] the Supreme Court of Navada, after due evaluation of the state
interest and the patients interest, upheld the permission for the removal of respirator.
However, in the instant case, Aruna could breathe by herself and did not need any external
assistance to breath and thus, distinguished from the Mckay case.

MEDICAL ETHICS
The Supreme Court dealt with the aspect of informed consent and right to the bodily integrity
of the patient as followed by the US after the Nancy Cruzan case[viii]. Informed Consent is
the kind of consent wherein the patient is fully aware of all the future courses of his
treatment, his chances of recovery, and all the side effects of all of these alternative courses of
treatment. If a person is in a position to give a completely informed consent and he is still not
asked, the physician can be booked for assault, battery, or even culpable homicide. The
concept of informed consent comes into question only when the patient is able to understand
the consequences of her treatment or has earlier when in sound conditions made a
declaration.
In this case, the consent of Aruna could not be obtained and thus, the question as to who
should decide on her behalf became more prominent. This was decided by beneficence.
Beneficence is acting in the patients best interest. Acting in the patients best interest means
following a course of action that is best for the patient, and is not influenced by personal
convictions, motives or other considerations. Public interest and the interests of the state were
also considered. The mere legalisation of euthanasia could lead to a wide spread misuse of
the provision and thus, the court looked at various jurisprudences to evolve with the
safeguards.

GLOBAL APPROACH
The general legal position all over the world was 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. Certain countries had passed legislations to
allow for active euthanasia or doctor assisted suicide. In the former, the physician or someone
else administers it, while in the latter the patient himself does so, though on the advice of the
doctor.
Netherlands:

Euthanasia in the Netherlands is regulated by the Termination of Life on Request and


Assisted Suicide (Review Procedures) Act ,2002.

It states that euthanasia and physician-assisted suicide are not punishable if the
attending physician acts in accordance with the criteria of due care. These criteria
concern the patients request, the patients suffering (unbearable and hopeless), the
information provided to the patient, the presence of reasonable alternatives,
consultation of another physician and the applied method of ending life.

Switzerland:

Article 115 of the Swiss Penal Code considers assisting suicide a crime if, and only if,
the motive is selfish. The code does not give physicians a special status in assisting
suicide; although, they are most likely to have access to suitable drugs. Ethical
guidelines have cautioned physicians against prescribing deadly drugs.

The Swiss law is unique because (1) the recipient need not be a Swiss national, and
(2) a physician need not be involved. Many persons from other countries, especially
Germany, go to Switzerland to undergo euthanasia.

USA:
Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the
states of Oregon, Washington and Montana. Further, Washington and Montana also have
similar legislations in place. Countries like Belgium, Canada have also joined the move. On
the other hand, countries such as Spain, UK, do not express their solidarity towards
euthanasia.

JUDGEMENT
The Honble 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. The Indian law in no way advocated not giving food to a person.
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.
Moreover, in furtherance of the parens patriae principle, the Court to prevent any misuse in
the vested the power to determine the termination of life of person in the High Court. Thus,
the Supreme Court allowed passive euthanasia in certain conditions, subject to the approval
by the High Court following the due procedure. When an application for passive euthanasia 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. Simultaneously
with appointing the committee of doctors, the High Court Bench shall 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 doctors 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.
However, Aruna Shanbaug was denied euthanasia as the court opined that the matter was not
fit for the same. If at any time in the future, the staff of KEM hospital or the management felt
a need for the same, they could approach the High Court under the procedure prescribed.
This case clarified the issues revolving around euthanasia and also laid down guidelines with
regard to massive euthanasia. 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.
Edited by Kudrat Agrawal
[i] 1987 (1) Bom CR.
[ii] 1994 SCC (3) 394.
[iii] (1996) 2 SCC 648.
[iv] Supra Note 3, 25.
[v] Vikram Deo Singh Tomar v. State of Bihar,1988 (Supp) SCC 734.
[vi] MHD (1993) 2 WLR 316.
[vii] 801 P.2d 617 (Nev. 1990).
[viii] Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841.

[ix] Supra note 2.


[x] Supra note 3.

Forty-two years after the crime against Aruna Shanbaug, a new crime against the
Constitution is in the making. Her assailant is being condemned to death by
starvation. Public institutions and a complicit society are punishing him again.
The Supreme Court must step in suo motu

In the Aruna Shanbaug judgment, the Supreme Court produced one of its finest verdicts. The
three clear, but nuanced, distinctions it made are a valuable contribution to Indian
jurisprudence and have far-reaching implications for social life since each qualitatively
diminishes the arbitrary behaviour of those in authority. The first refers to the extensive and
thorough deliberations it offered on the nature of human life. The court examined medical
literature and the accompanying ethical deliberations in bio-ethics to address the following
key questions that were crucial to the case. When can one say that a person is brain-dead and
in a permanent vegetative state? What are the rights of such a person? And what are the
responsibilities of the care providers and of the state when a person is declared to be in a
permanent vegetative state? The court provided clear guidelines on each question. This has
implications not just for vulnerable persons such as Aruna, but also for the whole new area of
human organ transplant that is mercifully growing. These observations meet the highest
standards of global jurisprudence.
A role to further principles
The second is its 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 Arunas 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. This too is a major contribution to Indian jurisprudence since it clarified the status,
rights and responsibilities of a next friend. Brilliant.
The third is its approval of passive euthanasia and the stringent procedures that must be
followed when such an initiative is to be undertaken.
All three elements of the Aruna Shanbaug judgment show that the higher Indian judiciary has
much to contribute to the growth of ethical and legal principles in any constitutional order.
On reading the judgment, I was proud of our Supreme Court.
Aruna Shanbaug has died. And in her death, what we thought was a closed case now appears
to be a case that is only half done. If the first half was the judgment just discussed which
was the easy bit because it was aligned with public sentiment the second half is to offer

the full protection of the Indian Constitution to her assailant, Sohanlal Valmiki, and his
extended family. This is the difficult part since it goes against the public mood that appears to
have revived its hostility to him because of media reports for the horrific crime he
committed 42 years ago. In the life of a constitutional democracy, 42 years is a long time. It is
a time for evolution and a time for maturity. It is a time for error and a time for redress. It is
time enough for wisdom.
A new crime
After 42 years, a new crime against the Constitution is in the making. Sohanlal Valmiki is
being condemned to death by starvation. Our public institutions and a complicit society that
care little for the last man (dont believe the Antyodaya stuff being talked about; hes a
Valmiki), and that are acting lawlessly, are punishing him again.
The court has to step in suo motu and intervene reversing what the public sector enterprise,
NTPC Ltd., has done by dismissing Sohanlal Valmiki from his job as a daily wage labourer
when his identity became known. He cycled 25 kilometres every day to earn Rs.261 a day by
heaving coal. His two sons, also daily wage labourers, are now unable to find work because
his identity is known. Since they are his sons, they too must be punished like Cinna the poet
in Shakespeares Julius Caesar. The family, his wife, their sons, their wives and children
as a result of the media investigation now face the agony of starvation and of intense
livelihood insecurity. There is no work available to them.
If passive euthanasia was the gift of the first half of the courts judgment, on the tragic
Aruna Shanbaug case, preventing unjust punishment must be the gift of the second part of
the courts intervention. In a constitutional democracy, the court does not only have to
adjudicate, but also has the responsibility to educate the citizen-public about the principles
that underlie our constitutional order. And if that means going against the public mood,
against a society and its institutions whose actions are sometimes tyrannical, then it must do
so. Sohanlal Valmiki has been demonised. He committed a terrible crime, was tried, and the
full force of the law was brought to bear on him. He was punished by the court. He has
served his time in prison. Now, he faces double jeopardy. The Constitution must protect him
and his innocent family through the Supreme Court which is the custodian of its integrity.
The Supreme Court must act suo motu or live with an incomplete case. If it does, it must take
responsibility for diminishing a stellar Aruna Shanbaug judgment by its inaction.
Here are the elements of the second half of the case, its afterlife so to speak. These have been
culled from the investigations done by the newspapers. They need to be cross-checked.
Sohanlal Valmiki was sentenced to serve a term of seven years at Yerwada jail for the ghastly
crime he committed on Aruna Shanbaug. The details are known. The facts were presented
before a court and he was given the term. (We will not go into the conflictual relationship
between Aruna Shanbaug and Sohanlal Valmiki, as reported in the papers, but shall detail his
life only after the court sentence.) His daughter died when he was in jail. His wife left him
because she could not bear the burden of his crime and the public humiliation that followed.

But she came back. He thinks it was fated. He could not find work in Bombay and moved
back to his in-laws village, in western Uttar Pradesh. He is tormented by the crime he
committed and, within the terms of his belief systems, was reported by his family to be in a
terrible emotional state when the euthanasia case was being heard. He is today very
remorseful, very religious and has found a guru. He is tired of the guilt, the humiliation and
the hardship, and longs for release to another life. He has a troubled relationship with his sons
who have to carry the burden of his crime. His wife has asked the sons to forgive him but
they cannot since he has brought the curse of illiteracy and poverty upon them. His brothers
are angry with him because he was the privileged one to be taken to the metropolis of
Bombay, the land of opportunity, since their father thought he was the bright one who would
make good for the whole family. He found anonymity when he returned to his village and
rebuilt his life, content to be the last man neglected by the state. With all its disadvantages,
he found protection in obscurity and had accepted his fate to live out a life in a permanently
deprived state till nature had run its course. His grandchildren just love him.
As the lynch mob
And then Aruna died. A new story had to be told. The media was on the move. We do not
know what editorial and ethical guidelines were given to the investigative reporters but, as a
result, Sohanlal Valmiki was plucked from his life of obscurity and placed before the glare
lights of the national media. His life was dissected, his personal details revealed, and he was
transported from the zone of quasi-protection to the zone of complete insecurity.
The assailant has been found and this is what he does. Here is where he lives. These are the
names of his family members. In a competitive media atmosphere, he was stripped naked
before the lights. We must reflect on what this means to a man at 66 or 72 years of age, from
the Valmiki community, who has been living on daily wages. Is he a simple or a cunning
man? I dont know. Is he now a vulnerable man? Yes, he is. He was dismissed from his job by
NTPC even though he had done nothing wrong at work. How can we have the assailant of
Aruna Shanbaug on our wage rolls, is what NTPC feels, I suppose. His sons have been
unable to find work as well.
The court has to decide how to educate a society such that it stops acting as a lynch mob. It
has to defend the Constitution in the second Sohanlal Valmiki case, as it did in the first Aruna
Shanbaug judgment. It has to defend Sohanlal Valmikis rights and protect the livelihood of
his family. We are a constitutional democracy, not a lynching one. It may mean going against
the tide. But the court does not have to be popular. It has to be right and just. It has to
intervene. The right to life that was so exquisitely elaborated on in the Aruna Shanbaug
case will be enriched by its suo motu intervention.