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CASE ANALYSIS:

Aruna Ramchandra Shanbaug Vs. Union of India (UOI) and Ors.

SUBJECT: ENGLISH

UNDER THE SUPERVISION OF


MS. AADYA DUBE
FACULTY OF LAW,
AURO UNIVERSTY

SUBMITTED BY:
JAY.R.KHATRI
BBA LLB 2017-22
SEMESTER-I
ENROLMENT NO: 312017002
YEAR: 2017-18

SCHOOL OF LAW AURO UNIVERSITY, SURAT


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 was 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.

ISSUES RAISED

1. When a person is in a permanent vegetative state (PVS), should 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 permanent vegetative state (PVS), should 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?
SECTION REFERRED

Constitution of India, 1950

Article 21 :- Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.

Article 32 :- Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.

Article 226 of Indian constitution: - Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose
(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

Section 302 of Indian penal code :- Punishment for murder.—Whoever commits murder shall
be punished with death, or [imprisonment for life], and shall also be liable to fine.

Section 304 of Indian penal code :- Punishment for culpable homicide not amounting to
murder.—Whoever commits culpable homicide not amounting to murder shall be punished
with 1[imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the act by which the death is caused is
done with the intention of causing death, or of causing such bodily injury as is likely to cause
death, or with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such bodily injury as is likely to cause
death.

Section 306 of Indian penal code :- Abetment of suicide.—If any person commits suicide,
whoever abets the commission of such suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine.

Section 309 of Indian penal code :- Attempt to commit suicide.—Whoever attempts to


commit suicide and does any act towards the commission of such offence, shall he punished
with simple imprisonment for a term which may extend to one year [or with fine, or with
both].

Section 2(d) in the Transplantation of Human Organs Act, 1994


(d) “brain-stem death” means the stage at which all functions of the brain-stem have
permanently and irreversibly ceased and is so certified under sub-section (6) of section 3;

Section 3(6) of the said Act states:


(6) Where any human organ is to be removed from the body of a person in the Event of his
brain-stem death, no such removal shall be undertaken unless such death is certified, in such
form and in such manner and on satisfaction of such conditions and requirements as may be
prescribed, by a Board of medical experts consisting of the following, namely:

Article 12 of the Constitution of India :- According to Article 12 of the Constitution of India,


the term 'State' denotes the union and state governments, the Parliament and state legislatures
and all local or other authorities within the territory of India or under the control of
the Indian government.

In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section
309 of Indian Penal Code) are both criminal offences.
JUDGEMENT AND REASONS

1. 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 permanent vegetative state (PVS), her condition was been stable. So, terminating
her life was unjustified but after seeing the different results by the doctor who stated that
there is no scope of improvement then judges had decided to give euthanasia but the
procedure has to be followed same as stated in the case.

2. Further, the right to take decision on her behalf vested with the management and staff of
KEM Hospital and not Pinki Virani. The lifesaving 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.

3. Moreover, in furtherance of the parent’s patria principle, the Court to prevent any misuses
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 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 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.

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 revoke
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

This case is a capable of attracting and holding interest one; it includes shockingly devotion from
an open body (healing centre) to spare the life of a person without expecting any prizes
consequently. It is for the law making body to make proper law overseeing wilful extermination
and further more keep up the said methodology as set by the Supreme Court in the moment case
to guarantee that there is no abuse of law or system.

Further, Aruna was sleeping, languishing over in excess of three long decades. A ruling for
permitting wilful killing for her situation would have been reasonable from a third individual
perspective.

Moreover, wilful extermination petitions ought to be utilized as points of reference as reports and
criticality of every restorative case fluctuate from one case to other. In this way, the council and
the Indian Medical Association and other restorative specialists ought to guarantee that a very
much drafted law with respect to wilful extermination and other related medicinal systems is
passed sooner rather than later because of this reason aruna has to suffered a lot but if the
procedure will go fast then there will be less suffering by the patient.