“Marte hain aarzoo mein marne ki Maut aati hai par nahin aati” -- Mirza Ghalib
The author believes that there is no need to give a introduction to such a widely known topic, thus directly movies towards the facts of the case. The court in the present case [Aruna Ramachandra Shanbaug Petitioner(s) v. Union of India & Ors. Respondent(s)] has legalized passive euthanasia and has laid the guidelines which will serve as a procedure in exercising euthanasia
FACTS OF THE CASE
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. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged.
JUDGEMENT
The Supreme Court in the present case took the reference of Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) where the same court held that the right to life guaranteed by Article 21 of the Constitution does not include the right to die.
It will be wrong to comment that the court has legalized euthanasia in totally, the court has differentiated: active and passive and has only legalized passive euthanasia. The court further described abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) which are criminal offences. The court differentiated from the Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India.
The Court held that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur’s case, the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.
The court also differentiated from a constitutional bench in Gian Kaur’s case, stating “although the Supreme Court has quoted with approval the view of the House of Lords in Airedale’s case, it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.”
There is no statutory provision in our country 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. The court following the technique used in Vishakha’s case, laid the following guidelines till the law in this connection is laid by the Parliament.
GUIDELINES BY THE COURT
(i) Euthanasia is only allowed where the brain death is caused as defined under organ transplantation act. Moreover a passive euthanasia is only allowed
(ii) A decision has 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 can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.
(iii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale’s case.
(iv) 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, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.
PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
CRITICISM
1) The author shall make no comment on the validation of euthanasia as he is the firm believer of this method.
2) The court in this case has not followed Art. 145 read with Supreme Court rules, where the said provision clearly says that a constitutional bench has to be made to decide a matter of constitutional importance
3) The Court impliedly has overruled the Gian Kaur vs. State of Punjab, though not expressed in words but still the non-obedience of law laid in that case, and laying the new law seems to be a colorable exercise of power.
Yours Sincerely,
Mr. Unknown
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