Case study on euthanasia plea Aruna Shanbaug.

Arunas Shanbhags Case I met a big learned pujari (astrologer) who said I had a sau mein ek patrika (a one-inhundred horoscope), that Id be a success, will live long & would go abroad. But even if he was talking rubbish it does not matter because I know that I will become known in my field. Aruna Shanbhag had uttered these words to her cousin about her plans to pursue her dreams of studying abroad. Little did she know that what waits for her is something so unimaginable, a future so horrid that even the best of pujari wouldnt look forward to predicting! Aruna was born in a small village Haldipur in the Uttara Kannada district of Karnataka. She studied up to Class X at the Rural Education Society School in this village, and after the death of her parents, left for Mumbai to live with elder brother, Balakrishna. She completed a nursing course and joined the KEM Hospital at Parel in Mumbai. The lively, pretty and dedicated Aruna soon became very popular amongst the hospital staff. Then 25 year old, Aruna was planning to get married to Dr. Sandeep Sardesai, a resident doctor in the same hospital. Aruna had planned a party on November 30 (2 days after the attack) for her colleagues including the sweeper Sohan Lal, whom she disliked intensely. In 1973, while she was working at King Edward Memorial Hospital, Parel, and Mumbai she was assaulted by a Sohanlal Bhartha Walmiki, a ward boy at the hospital. Walmiki was motivated partly by resentment for being ordered about and castigated by Shanbaug. On the night of 27 November 1973 he attacked her while she was changing clothes in the hospital basement for leaving her shift. He choked her with a dog chain and sodomized her. The asphyxiation during the course of the assault cut off oxygen supply to her brain resulting in brain stem contusion injury and cervical cord injury as well as leaving her cortically blind. She and Sohan Lal both worked in what was called the dog lab of the hospital a laboratory in the basement where unclaimed street dogs were kept for experimental purposes. Sohan Lal was in charge of keeping the area clean and for getting dogs from their cages to the operating theatre. Aruna used to hate Sohan Lal as she had found him mistreating the animals and stealing dog food and medicines. She had warned him several times and had even reported the matter to her superiors.

Sohan Lal was obviously very piqued with Aruna for this. On 27th November, 1973 Aruna told him that she was going to send a written complaint to the Dean about him. Sohan Lal thought this was the limit and he must teach this daring nurse a lesson. When Aruna was changing in the basement, Sohan Lal was lurking in the shadows waiting for the right opportunity to take his revenge. He attacked Aruna in the basement. She fought like a tigress, biting him, scratching him, kicking him, but he managed to throw her on the ground. He first 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 strangulation cut off oxygen supply to her brain resulting in brain stem contusion injury and cervical cord injury apart from leaving her cortically blind. The next day on 28th November, 1973 at 7.45 a.m., Pramila Kushe, a cleaner in the KEM Hospital, found her lying on the floor with blood all over in an unconscious condition. Recounting the horrible experience Pramila says, I was the first one to find Aruna in the empty operation theatre in this hospitals basement after she had been raped and brutally assaulted by that animal Sohan Lal. She was sitting, leaning against a stool with a dog-chain around her neck. There was blood around her. I ran out and brought the matron. As soon as she saw matron Bellimal, her eyes welled up and tears streamed down her face. She tried to say something but could not only her lips moved. And then, slowly she lost consciousness.. Sohan Lal was subsequently arrested from Pune and a police case was registered against him for robbery and attempted murder but not for rape or sexual molestation or unnatural sexual offence as hospital officials had deleted parts of her medical report that proved Aruna been sodomized. This was done to ensure that she did not face any ostracism after her recovery. Sohan Lal was convicted for 7 years in jail in 1974. It is believed that had he been charged for rape, he might have got a longer jail term (up to 10 years). Sohan Lals brutality did not end with the horrible assault on Aruna on 28 November 1973. After his release from prison, Sohanlal tried to attack Aruna a second time in the hospital bed by pulling down the bed railings in the hope that she would fall down and die. The hospital authorities then shifted Aruna to a secure room which is locked most of the time with access only to the doctors who treat her and the nurses who go in to feed and bathe her. 37 years have expired since the incident and now Aruna is about 60 years of age. Though she survived the horrible attack, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation. She has been in a vegetative state for all these years. However, contrary to the common confusion, she is neither in Coma nor is she Brain Dead. Her family and relatives used to visit her initially for some time but later abandoned and left her entirely to the KEM Hospital staff. She is featherweight, and her brittle bones could break if her hand or leg is awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives.

Although Aruna is not very much aware of herself and her surrounding, she somehow recognizes the presence of people around her and expresses her like or dislike by making certain types of vocal sounds and by waving her hands in certain manners. She appears to be happy and smiles when she receives her favorite food items like fish and chicken soup. She accepts feed which she likes but may spit out food which she doesnt like. She was able to take oral feeds till 16th September 2010, when she developed a febrile illness, probably malaria. After that, her oral intake reduced and a feeding tube (Ryles tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryles tube, and is only occasionally able to accept the oral liquids. Malaria has taken a toll in her physical condition but she is gradually recuperating from it. Occasionally, when there are many people in the room she makes vocal sounds indicating distress. She calms down when people move out of her room. She also seems to enjoy the devotional songs and music which is played in her room and it has calming effect on her. In an annual ritual, each and every batch of nursing students is introduced to Aruna, and is told that She was one of us; She was a very nice and efficient staff nurse but due to the mishap she is in this bed-ridden state. The entire nursing staff member and other staff members have a very compassionate attitude towards Aruna and they all very happily and willingly take care of her. They all are very proud of their achievement of taking such a good care of their bed-ridden colleague and feel very strongly that they want to continue to take care of her in the same manner till she succumbs naturally. They do not feel that Aruna is living a painful and miserable life.

Misadventures of the Supreme Court in Aruna Shanbaug v. Union of India

The Supreme Courts decision in Aruna Shanbaug v. Union of India raises important questions about the meaning of life, death and their relationship to law and to state power. Unfortunately the judgment in the case not only fails to grapple adequately with these issues, but also betrays faulty legal reasoning and an utter disregard for the law and the legal process. It gives short shrift to important constitutional issues, and is more concerned with foreign precedents than with Indian statutes, case law, rights and process. In doing so, it gets it all terribly wrong. A. The Virtues of being Pedantic The case was filed as a petition under Article 32. Upfront the Court clarified that the petition did not make out any violation of a fundamental right; and that therefore a petition under Article 32 was misconceived. However, in view of the importance of the issues involved the Court decided to go deeper into the merits of the case. Was the Court right in disregarding issues of its own jurisdiction? Or are questions of jurisdiction merely fodder for pedantic quibbling amongst lawyers? We believe that there are virtues to being pedantic in such matters. The court is after all a wing of the state, and as such a wielder of public power. Law is one instrument of keeping a check on public power and of ensuring accountability in its exercise. The system of rule of law cannot exist in bits and pieces. It either stands together or falls. If the Court can pick and chose when and where it wants to follow the law and when it is dispensable, we will move from a system of rule of law to the rule of judges. It is a sad fact that this episode is not a one-off instance of the Court deciding that if the law is inconvenient (as opposed to unconstitutional) it can disregard the law for the purposes of its own decision-making. As Pratap Bhanu Mehta has argued, the Court has increasingly taken to acting because it can, and not because it has the legal authority to do so. It is also not as if declining jurisdiction in the case would have left the petitioner without recourse. As the Court itself pointed out, High Courts have power under Article 226 to deal with the matter. Declining jurisdiction in favour of the Bombay High Court would also have provided for greater deliberation on the issue by engaging at least two levels of the judiciary, and many more heads and voices. B. Taking Rights Lightly The focus on procedure is important also because process itself is often the site for substantive violations of rights. This case itself serves as an example. In one segment of the judgment, the court discussed its appointment of a group of doctors to examine Ms. Shanbaugs condition. Along with their report the doctors submitted a CD which contained a video showing Ms. Shanbaugs condition. The Court screened the CD before the entire courtroom so that all present in court could see the condition of Aruna Shanbaug. We dont know if the CD covered Ms. Shanbaugs full medical examination (hopefully not) but even without it, the public screening of a video detailing the physical and mental condition of a patient lying in her hospital bed in a permanent vegetative state, is surely a violation of her privacy and dignity rights. This did not even occur to the Court, and in this, the judicial process treated Ms. Shanbaug as an inanimate object of study and pity, rather than a rights bearing citizen entitled to respect and dignity. Taking rights out of the picture is also evident in the very framework of the judgment. The

decision is based on the following (il)logical sequence: 1. If passive euthanasia is not expressly prohibited by law, it is permitted. 2. Passive euthanasia is an omission. 3. Omissions are not criminalized. 4. Therefore passive euthanasia is not criminalized. 5. Therefore passive euthanasia is permitted. Let us examine each of these claims. Reading the judgment it appears that the Court started out from the premise that if passive euthanasia is not expressly prohibited by law, it is to be permitted. However, Article 21 already provides for a broad prohibition against the taking of life except according to procedure established by law (and here the court agreed that Ms. Shanbaug is still alive in the legal sense). Therefore, with Art. 21 as the guiding principle, the starting premise rightly ought to have been if the taking of life is not expressly permitted by procedure established by law, it is to be prohibited. This would have shifted the focus to examining whether in Indian law there is any law that permits the taking of life in such circumstances, rather than examining whether there is a prohibition to the effect. [Should the law permit the taking of life in such circumstances- thats a different question entirely, and we would argue that in matters of life and death and the control of the state thereon, it should be for the legislature to decide.] The Court however did not engage with the right to life at all, except to point out that in Gian Kaur v. State of Punjab [(1996) 2 SCC 648] it had held that the right to life does not include the right to die. It completely failed to consider the relevance of the substantive protection of the right to life for the case at hand. This is symptomatic of the disregard for law flowing through the entire judgment. There was hardly any discussion of Indian law beyond the brief mention of the Gian Kaur case, and Section 309 of the Indian Penal Code (IPC), which criminalizes attempts to commit suicide. The court relied heavily on foreign precedents instead, and that is why its other premises fail. C. Whats Law Got To Do With It? Even with the Courts starting position that passive euthanasia is permitted unless expressly prohibited, the Court did not investigate Indian law to examine whether there exists such a permission. The decision was based on the erroneous major premise that omissions are not criminalized under Indian law. The Court stated, referring to the distinction between active and passive euthanasia that: An important idea behind this distinction is that in passive euthanasia, the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another persons life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But, if someone sees a burning building and people screaming for help, and he stands on the sidelines whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever if one does nothing, few would judge him for his action. One would surely not be prosecuted for homicide (Atleast, not unless one started the fire in the first place)...[T]here can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested. Some persons are of the view that the distinction is

not valid. They give the example of the old joke about the child who says to his teacher, Do you think its right to punish someone for something that he didnt do? Why of course not, the teacher replies. Good, the child says, because I didnt do my homework. In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policemans order to put down ones gun. Thus, according to the Court since omissions are not crimes, and since passive euthanasia is an omission, there is no criminal prohibition against it. Is that understanding correct in law? The classic definition of a crime requires an act (actus reus) and a corresponding mental element (mens rea). Whether an act includes an omission has always been a tricky question. A.P.Simester and G.R.Sullivan in their book Criminal Law point out how omissions in general are not criminalized. They highlight exceptions to the rule, which include: Specific Statutory and common law offences. Eg: Omission to file tax returns When the accused and the victim have a special relationship. Eg: Parent-child. Duties imposed on persons assuming a particular responsibility. Eg; Doctor-Patient Hence, in common law, a doctor will be liable for at least some omissions that cause harm to the patient. In the decision of the House of Lords in Airedale v. Bland, the Law Lords held that omissions do not constitute the requisite actus reus for homicide. In Aruna Shanbaug, the Court accepted this as true of the Indian position as well, without examining the IPC. Section 32 of the IPC (to which the Supreme Court did not refer) states: In every part of this Code, except where a contrary intention appears from the context, words which refer to acts done, extend to illegal omissions. Thus, an illegal omission can be the requisite actus reus for a crime. Does that extend to homicide? Section 300 of the Penal Code defines murder as an act (and by virtue of Section 32, an omission) which is done with the intention of causing death. It is pertinent to note that Exception 5 to Section 300 of the Code states that if a person causes the death of another with that persons consent the resultant crime will still be culpable homicide not amounting to murder. Consequently, a doctor can be held liable for culpable homicide not amounting to murder, even if he/she caused death with the patients consent. The Code thus expressly criminalizes both active and passive euthanasia even if done with the patients consent. What then about a person in a persistent vegetative state, and therefore incapable of consenting? It is useful to refer to Section 92 of the Indian Penal Code to understand the legislative mandate. This section, in dealing with the necessity defence, says that a person can do an act which benefits another, if that other person is not in a position to consent to the act. The section in its proviso, clearly says this does not extend to causing death or doing any act which is likely to cause death of that person. Applying this section to the present context, the Penal Code provides that if a patient is not in a position to give consent, a doctor can do anything that benefits the patient, short of actions that cause death or are likely to cause death. Returning to omissions, it is important to remember that Section 32 refers to illegal omissions. What does illegal mean? Section 43 of the Indian Penal Code defines the term to mean everything which is an offence, or which is prohibited by law, or which furnishes

ground for a civil action. It can possibly be argued that since withdrawing life support to a person in a persistent vegetative state has not been made an offence, or expressly prohibited by law (though as we have shown, that might not be the case because of Section 92), the only question that remains is whether the person or his/her next friend would have a ground for civil action against the doctors. This would depend on the duty of care that the doctor owes towards the patient. It could be argued that if the doctor believes that it is in the patients best interests to stop treatment or withdraw life-support, s/he might be satisfying the duty of care required. However, this is a gray area, one on which there is no clarity in Indian law. It is hence possible to argue that withdrawing life support from a person in a persistent vegetative state is not an illegal omission. It was open to the Court to take this interpretation. The problem with the Aruna Shanbaug decision is that it did not discuss any of these provisions. It assumed that under the Indian Penal Code, omissions cannot constitute the actus reus for murder, or for any other crime. It blindly relied on Airedale to come to this conclusion.

Supreme Court's Aruna Shanbhag judgment

The Supreme Court rejected the euthanasia plea, but the judgement is clearly a landmark one in Indian judicial history.
About Court Verdict

We could have dismissed the petition on the short ground thatthe right to life guaranteed by Article 21 of the Constitution does not include the right to die, observe Justices Markandey Katju and Gyan Sudha Misra sagely in the Aruna Shanbaug case. Howe ver, in view of the importance of the issues involved we decided to go deeper into the merits of the case. Negotiating the grey ethical areas relating to euthanasia in a humane, progressive, and persuasive way, this detailed Supreme Court judgment lays down a broad legal framework for dealing with a subject that has not received the attention it deserves from the legislature. The court's decision on the immediate matter at hand the plea that Aruna Shanbaug, the nurse who has been lying in a vegetative state on a Mumbai hospital bed since she was brutally raped and strangulated in 1973, should be allowed to die is largely based on medical evidence. The evidence furnished by a panel of experts showed that while Ms Shanbaug may be in a permanent vegetative state (PVS), she is neither brain dead nor in a coma. The court also went into the question of who could initiate the move to withdraw life support to a person in PVS. Its answer is that such decisions can be taken by parents, spouses, and close relatives or, in their absence (as in Ms Shanbaug's case), the next friend. Justices Katju and Misra held that her next friend was clearly KEM Hospital staff, who have been amazingly caring for her day and night for so many long years, and not the petitioner who urged that Aruna be allowed to die in dignity. Upholding the distinction between active euthanasia, which involves taking specific steps such as injecting a person with a lethal substance, and passive euthanasia, which is withdrawing medical treatment with the knowledge that it will cause death, the court has held that the latter is permissible in exceptional circumstances for example, when a patient is kept alive purely mechanically and when he or she is only able to sustain involuntary functioning t hrough advanced medical technology. Citing a slew of international case laws on the subject, the Supreme Court has laid down a strict framework for the procedure to be adopted for non-voluntary passive euthanasia until suitable legislation is in place. All mercy-killing pleas should be heard by a two-member bench of the appropriate High Court and decisions may be taken only after seeking medical opinion from three empanelled doctors, who must examine the patient, his or her medical records, and also get the views of the hospital staff. Leaving such decisions entirely to a patient's relatives or doctors carries the risk that murders will be carried out in the guise of mercy killing. In its judgment, the court has struck a fine balance it has shown great sensitivity in handling the heart-rending case of Aruna Shanbaug and her wonderful next friend,' the KEM Hospital staff, taken a progressive and empathetic view about dying with dignity, but subjected it to exacting and rigorous procedures.

Aruna Ramchandra Shanbaug .. Petitioner -versusUnion of India and others .. Respondents JUDGMENT

Markandey Katju, J. "Marte hain aarzoo mein marne ki, Maut aati hai par nahin aati" - Mirza Ghalib 1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra. 2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today. This Court, in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend. 3. It is stated in the writ petition 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 on 28th November, 1973 at 7.45 a.m. 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. It is alleged that the Neurologist in the Hospital found that she had plantars' extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged at page 11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short while again she goes back into the same sub-human condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is 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 is that the respondents be directed to stop feeding Aruna, and let her die peacefully. 4. We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by the Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Hence the petitioner has not shown violation of any of her fundamental rights. However, in view of the importance of the issues involved we decided to go deeper into the merits of the case. 5. Notice had been issued by this Court on 16.12.2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet. Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare. 6. Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were : (1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; (2) Dr. Roop Gursahani, Consultant Neurologist at P.D.Hinduja, Mumbai; and (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.