Euthanasia: Aruna Shanbaug revisted

Euthanasia is known by many names across the globe: mercy-killing, assisted suicide, physician assisted suicide. A widely debated and even more widely misunderstood concept, it has divided opinions in both the medical and the legal fraternity. India’s most famous case on Euthanasia was, of course, Aruna Ramchandra Shanbaug v Union of India and Ors, 2011.

It has been 6 years since the decision of the court in Aruna Shaunbaug’s case and while the judgement in itself was a watershed moment in the history of the Indian judiciary, there still remains absolutely no legislation in place for victims, patients, and the terminally ill who in many places known and unknown are suffering a fate similar and in other cases worse than what was meted out to Aruna Shaunbaug.

To recall the facts Aruna Ramachandra Shaunbaug was a nurse working in King Edward Memorial Hospital in Mumbai. She was attacked and raped by a sweeper of the very same hospital on the night of 27th November 1973. The attacker used a dog chain, to tie her down, when she resisted, he twisted the chain around her neck and immobilized her after which he proceeded to rape her within the hospital premises before leaving her almost lifeless body in the hospital itself, to be found. She was 34 years of age at the time of the incident. She survived the incident, but it left her in a persistent vegetative state. The act of rape was so violent that it caused deep brain injury as a result of lack of oxygen supply to the brain, as well as physical damage to the cortex of the brain. She remained in that state for 36 years in a ward of that same hospital unable to walk, sit-up, feed herself, recognize people, speak, or perform any normal bodily function without assistance. With contractures in both hands, a feeding tube in her nose, toothless, with very little skin and highly brittle bones, she fit the description of being in a “persistent vegetative state” at the age of 60.

Pinky Virani, an author and a social activist, took up the case of Aruna Shaunbaug, through a criminal writ before the Supreme Court.  The bench of Justice Markandey Katju and Justice Gyan Sudha Mishra passed an extensive and exhaustingly researched order finally disallowing the euthanasia of Aruna Shaunbaug. The Court in much of it’s free flowing prose felt that in its considered opinion there was not sufficient ground for granting euthanasia to Aruna since according to the medical report produced before the court, there was sufficient brain activity. The Court while aware of the historical value of the occasion left no stone unturned in examining various medico legal aspects of euthanasia including the corresponding laws in countries like Canada, United Kingdom, European Countries and several American States, including it’s own previous judgements under Gian Kaur v. State of Punjab as well as P Rathinam v Union of India, where the apex court had ruled that the right to life does not include the right to death and hence passive euthanasia is not legal in the Indian framework. The author would like to argue that unquestionably the issue of euthanasia raises many medico legal questions which at the best of times cannot be simply answered with a simple yes or no. In Aruna’s case the court tried to explore the question as to when is a person actually considered dead? Should only the brain activity of the person be considered as the sole determining criteria? Is brain death to be treated as the last stage, or should there be some other criteria takes into consideration both the human, and the medical legal aspects of an individual’s death? It was after all the apex court which held in P Rathinam v Union of India that life is more than mere animal existence. Then why did the apex court get persuaded by pure medico legal jargon, when clearly it was seized of the gravity of the issue. Could it not be that a person who clearly is in a vegetative state and is unable to make decisions of their own, has little or no control over their bodily functions, responds to the external environment in a very limited manner, is by any degree of imagination, common sense and legal definition not "living". While the moral dilemma of such an action can always be debated its consequences are clearly binary. A person who the medical report states, (subsequently accepted by the Court) as lying in a vegetative state is clearly not possessed of the ability and functionality that a normal human being naturally possesses by virtue of the gift of life and good health. To prolong the pained circumstances of such a person through the use of medical technology where there is no perceptible change through such efforts in the patient’s condition, is only to temporarily deny the inevitable conclusion.

A more holistic view of such people in similar situations will require a bold judiciary.  Seen through the prism of medical science it is always easy to decide but harder to acknowledge that a patient’s life does not hold a future despite all best efforts. While the magnitude of the question before the court exceeded all past precedents before it, yet medical science alone is not the answer here.

If we look at other jurisdictions where Euthanasia is allowed, almost all the countries that allow Euthanasia do so in the case of passive Euthanasia. Netherlands is one of the first countries to enact a legislation through 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. Switzerland has a similar law, where it is known as assisted suicide. Practically the only law in the world which allows non-physicians to perform suicide. The difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it. Belgium also has a suicide law similar to Netherlands. Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. But these are of course exceptions since a vast majority of developed nations such UK, Spain, Austria, Italy, Germany, France, and even the USA barring the states of Oregon, Washington, Montana all have declared Euthanasia illegal.  In this respect, it must be said that the Indian judiciary has at least allowed Euthanasia subject to the fulfillment of the following conditions.    

The Supreme Court, in Aruna’s case held that in the case of an incompetent person who is “unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae (legal protector of citizens unable to protect themselves), which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.” Article 32 of the Constitution grants power to the Court through a writ before it to issue necessary directions in wide variety of cases to provide for justice. In such an instance, the application has to be filed before a division bench of the High Court. The High court in turn should refer such an application to a Committee of 3 doctors (neurologist, psychiatrist, physician).  Such Committee shall submit its report upon examination. A court notice is also required to be served on the next of kin/close relatives as well as to the State along with a report of the medical committee. All parties shall be heard only after which the Court may pass a verdict. 

Thus, passive euthanasia was made legal in India, albeit under exceptional circumstances, and while it was best intentioned by the Hon’ble Supreme Court to couch it in the form of a legislation, the government chose to treat the judgement of the Supreme court as the definitive guidelines in the event of such requests. The question was once again examined by the apex court in Common Cause v Union of India 2014, when a NGO wanted the earlier question re-examined to mean whether in light of Aruna Shanbaug’s judgement it could be interpreted to mean that doctors are obliged to keep providing treatment to a person who has already expressed a desire not to have any life prolonging measure. The Court rightly recognizing that there was a broader issue here that concerned people who were in coma for longer periods of time due to accidents, and could not be saved medically except through artificial life support, decided to refer the matter to a larger bench to deliberate on the question. Till date unfortunately the Supreme Court has not been able to decide this question conclusively.

At the heart of the issue is of course the vexing question of whether right to life includes the right to death. Can article 21 of our Constitution (perhaps the most hold fundamental right of all the other rights) be interpreted to mean that an individual has the right to take his own life. When presented with this dichotomy, the Supreme Court while initially accepting that the right to life includes the right to death later on reversed its decision through Gian Kaur v State of Punjab 1996 holding that extinction of life cannot be read into the meaning of protection of life, since suicide is an unnatural termination of life and therefore, incompatible and inconsistent with the concept of 'right to life'.

While the Court did stoke the debate on whether the right to die can be meant to include cases where a person who is terminally ill or in a persistent vegetative state has the right to die with dignity. When death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. Perhaps realizing that this was a case before its time, the Court merely observed that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life.

In doing so was lost an opportunity to define and answer a question whose relevance will only increase in the times to come. As society ages, the axis of human mortality and medical science will keep determining the longevity of humans. The whole concept of life at an age or in a state where the body is merely subservient to a machine or contraption will not afford any dignity to an individual, no matter how long it allows him to live. The courts have to realize that it is only the Constitution that protects the dignity of the individual and not a life support machine.                      

 

Anindya Majumdar 
on 08 September 2017
Published in Constitutional Law
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