EUTHANASIA: The old doctrine followed with new results

 “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

Article 21: The Life of lives

Introduction

Life has changed its shades and meaning from time to time. The debate on life started in A.K Gopalan case, where the Supreme Court held that if the law is valid and there is a procedure established in the law then the law is not a violation of Art 21.  In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it was further held by a Constitution Bench of the Hon’ble Supreme Court that not only there has to be a procedure established in the law but the procedure for depriving a person of his life or liberty should be fair, reasonable and just. This is the law of the land and has been applied in various cases. In the present case [ MD. Sukur Ali v. State of Assam Cri Appeal No. 546 of 2011] came for an appeal in the Hon’ble Supreme Court challenging the decision of the Gauhati High Court on 01.06.2010 that in the absence of the counsel for the appellant accused and the conviction was upheld. The main question was:

1.      

Whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint amicus curiae to defend the accused?

Judgment of the Court

The Hon’ble Supreme Court held that it is not fair or just that a criminal case should be decided against an accused in the absence of a counsel. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution.

Apart from the above, the Court agreed with the eminent writer H.M Seervai who has  said in his “Constitutional Law of India’, Third Edition, Vol. I, Pg. 857:-

“The right to be defended by counsel does not appear to have been stressed, and was clearly not considered in any detail in Ajaib Singh’s case (1953) SCR 254. But the right of a person accused of an offence, or against whom any proceedings were taken under the Cr.P.C. is a valuable right which was recognized by Section 340 Cr.P.C. Article 22 (1) on its language makes that right a constitutional right, and unless there are compelling reasons, Article 22 (1) ought not to be cut down by judicial construction........ It is submitted that Article 22 (1) makes the statutory right under Section 340 Cr.P.C. a Constitutional right in respect of criminal or quasi-criminal proceedings.”

Setting aside the order of the High Court, the Supreme Court in a recent decision [Md. Sukar Ali v. State of Assam] has declared that no trial of an accused can take place in the absense of a counsel for the accused. Holding that in such circumstances it was obligatory on the part of the Court to provide an amicus curie in the form of a lawyer practicing in criminal law, the Supreme Court held that such right to have a lawyer was a fundamental one and deeply rooted in the constitutional ethos of the country.

That question is whether in a criminal case if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused, or the Court should appoint an amicus curiae to defend the accused ?

“We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights.”

The Supreme Court took a reference form the US Supreme Court decision in Powell Vs. Alabama, 287 US 45 (1932), in which it was observed :-

“What, then, does a hearing include? Historically and in practice, in our own country at least, it has always included the right to the aid of counsel when desired and provided by the party asserting the right. The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a State or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense”.

The Court allow the Appeal, setting aside the impugned judgment of the High Court and remand the matter to the High Court for a fresh decision after hearing Mr. Sinha, the new learned counsel for the appellant in the High Court, or any other counsel which has been engaged by the appellant, or in the absence of these, an amicus curiae being a lawyer practising on the criminal side.

Yours Sincerely 

Mr. Unknown

New aspects of Secularism

 I still remember the lectures by our course teacher Mr. Kumar Kartikaya and visiting faculty Mr. Faizan Mustafa on secularism. I don’t think I need to retaliate the whole lecture on this but I will like to basically concentrate on a recent case RAJESH HIMMATLAL SOLANKI v. UNION OF INDIA, where the Gujarat High court has declared that the “offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if 'manav dharma' is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation." It would be proper for the present discussing to first to understand secularism to recall everything taught in the class.

HISTORY OF THE NEVER ENDING ISSUE

In S.R. Bommai v. Union of India (1994) 3 SCC 1, the Apex Court observed that secularism in the Constitution is not anti-God and it is sometimes believed to be a stay in a free Society. Secularism in the Indian context bears positive and affirmative emphasis. Religion is one of belief personal to the individual which binds him to his conscience and the moral and basic principles regulating the life of a man had constituted the religion, as understood in our Constitution. State is neither pro particular religion nor anti particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions subject to regulation and actively acts on secular part.

 In Ramjanmabhumi Babri Masjid issue, for acquisition, in case of Dr. M.Ismail Faruqui Vs. Union of India reported at AIR (1995) SC 605, it was observed after considering the earlier decision of the Apex Court in the case of S.R. Bommai case, that the provisions of section 7(2) of the Acquisition of Certain Area at Ayodhya Act, 1993, in now way curtains the practice of the right of worship of the Muslim community in the disputed area. It was also observed that the constitutional scheme that does guarantee equality in the matter of religion to all individuals and the groups irrespective of their faith emphasising that there is no religion of the State itself.

WEIRD REASONING OF THE H.C COURT

In deciding the question as to whether a given religion practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in operation. Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices, the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religions in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and tenents of its religion. Otherwise, purely secular practices which are not an essential or integral part of the religion are apt to be clothed with a religions form and may make a claim being treated as religious practices within the meaning of fundamental rights of freedom of religionas provided by the Constitution. It is true that the decision of the question as to whether a certain practice is religions practice or not, as well as the question as to whether the affair in question is an affair in the matter of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because as is well known, under the provisions of ancient Smritis, all human actions from birth to death and most of the individual actions from day to day are  regarded as religions in character. As an illustration, if an obviously secular matter is claimed to be matter of religion, or if an obviously secular practice is alleged to be religious practice, the Court would be justified in rejecting the claim. For example, a disposition towards making a gift for charitable or religious purpose may be a pious act of a person but the same cannot be said to be an integral part of any religion. It is not the case that the religion of Christianity commands gift for charitable or religious purpose compulsory or the same is regarded as such by the community following Christianity. Disposition of property for religious and charitable purpose is recommended in all the religions but the same cannot be said to be an integral part of it. If a person professing Christian religion does not show any inclination of disposition towards charitable or religious purpose, he does not cease to be a Christian. Even certain practices adopted by the person professing a particular religion may not have anything to do with the religion itself.

 The aforesaid shows that the word 'dharma' is not in contradistinction to the secularism if it is understood in its real sense, that is, “Sarve Bhavantu Sukhino”. Merely because in certain religious practices, there is no identification of certain offering to the supreme power or almighty would not result into adharma or anti-dharma. 

 In the same manner, in our opinion, we can say that dharma in real sense of mankind embraces to all religion be it, Hindu, Muslim, Christian, Parsi, etc. If the basic human character for the interest of the mankind irrespective of its caste or community or religion are shown as the practices in any religion, such cannot be termed so as to claim exclusive part of a particular religion, but can be said as a secular activity also identified by the religion on the broad principles of “Vasudeva Kutumbakam” or “Sarve Jana Sukhino Bhavantu” being welfare to everybody, hurt to none. It is in this light and background, we need to examine the incident of Foundation Laying Ceremony and the prayers offered at the said incident of Foundation Laying Ceremony.

At the time of excavation of such earth or at the time when a building is to be constructed by adding physical burden, offering of the prayer to the earth to pardon or to graciously bear the burden or the damage, if any, to make the construction successful, which is to be used for betterment of the institution of the High Court, such an action can be termed as for the betterment of all persons connected thereby directly or indirectly, irrespective of their caste or religion or community. Therefore, such offering of the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-secular action if “manav dharma” is to be understood in its real sense in furtherance to the principles of secularism to be observed by our nation.

As such, offering of prayer at the incident of Foundation Laying Ceremony for the successful construction of the building to be used by the persons irrespective of their caste, community or religion, etc., could be termed as a part of secular activity and it cannot be termed or branded as choosing a particular religion since the prayers offered for such a noble cause cannot be termed as essential and integral part of a particular religion, but can rather be termed as for the benefit of all who are to make use of the new building directly or indirectly in future. Hence, it cannot be said that the High Court or the Chief Justice of the High Court or the Governor while offering prayer for successful completion of the building has taken any action which can be termed as non-secular and consequently, unconstitutional.

We find that when the principles of secularism are considered to test the action, it can be said that the same is by maintaining the spirit of the secularism as envisaged by our Constitution.

CRITICAL ANALYSIS AND CONCLUSION

The main question which is often misunderstood by the judges is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High court is silent on the second question while goes on giving justification on justifications to establish its reasoning and hide its act. ‘Bhumi Pujan’ which is basically not a dharma but a part of Hindu Religion and the slokas in this pujan contain names of various Hindu Gods. I respect the views of the High Court but would prefer the reasoning of  Arun Thiruvengadam in (Law and other things Blog), where the student in few lines has commented on this situation saying, “The ToI report on the case carries the headline: “Secularism is not anti-God”. Students of the Indian judiciary’s body of precedents on religion and the law know that this sentiment is certainly in line with that body of law. However, the question is not whether one has to be “anti-God” to be secular, but whether one religion in particular can be accorded a higher status, thereby violating the principle that all religions in India be treated equally. The High Court’s judgment spectacularly ducks this more important and salient question. It would have been quite a different scenario if the Gujarat High Court had invited religious figures from the major Indian religions to the foundation ceremony to offer common prayers. (This is not to say that that scenario is not without problems, but to emphasise that only one religion was represented).”


Yours Sincerely


Mr. Unknown.

A STEP TOWARDS SOCIAL WELFARE: Submission on the Sexual Harassment Bill by Oxford Pro Bono Publico (OPBP)

A learned student, Dhruv Desai, 4th year law, Symbiosis Society's law college, Pune in one of his article available in Legal service India, has written that, “Sexual harassment and rape are two sides of the same coin. Both showcase the power of man to dominate that of women.” It is respectfully submitted that such a statement is partially wrong, though it may be justified in rape cases as there, only the man lies under the sword, but in sexual harassment at workplaces not only effect women but also men. Thus this statement made by her is not convincing. Well! Moving towards our main discussion, the author will try to give a brief out all the recommendation in the Oxford Pro Bono Publico (OPBP), report submitted to the Rajya Sabha Committee scrutinising the Protection of Women against Sexual Harassment at Workplace Bill 2010. The main aim was to illustrate changes in the definition of sexual harassment and to the mechanism for remedies available in the bill. The said work has made 5 recommendations out of which some seems to be proper while the other is hard for the author to accept.

The first recommendation is that An ‘Explanation’ should be introduced in s 1(m) of the bill to clarify the ‘unwelcome’ nature of the sexually determined behaviour as follows: ‘Explanation: Whether the sexually determined behaviour is unwelcome or not shall be judged prima facie from the perspective of the aggrieved woman.

This seems to be a little unjust provision, though the said Act, which is now in the stage of bill, if contain this provision then it will not only act as a shield but also a weapon. This recommendation seems to be very appealing but the social circumstances should also be seen. India is a country with huge diversity, and any person cannot ascertain what conduct is sexual in nature for different class of women. Thus a reasonable ground should be constructed as to make a common platform for a sexual act.

Another recommendation it makes is that the result or effect should be seen instead of intend or motive. This also seems to be non-convincing recommendation as form the day 1 in a law school it is taught that parties’ intend is seen, this goes against the principles of criminal jurisprudence.

The third recommendation made by the report is, “Prohibiting Punishment for Women making a ‘False’ or ‘Malicious’. This recommendation is made on to amend S. 14 of the bill, which permits action to be taken against a woman who has made a ‘false’ or ‘malicious’ complaint should be deleted. The primary reason given by the report is that acts of sexual harassment are often conducted in an implicit or clandestine manner, concealed in vague words of actions pregnant with covert meaning. It is difficult to prove such acts beyond reasonable doubt as may be possible with physical injury or other crimes. To label a charge with no proof as weak, or as bogus or fake, is insulting to the victim.

This seems to be the least convincing argument; the view drawn by this report is for the victim and not the person who is charged for it. His days and nights are spend without his right to liberty of thoughts because the only thing in his mind is the claim made on him, and if it turns to be incorrect, then the lady should be punished so as to limit the wrongful advantage taken by the women under this act.

The third recommendation: Making the Bill Gender-Neutral and Introducing a Dignity Element seems to be the most proper one. “The title of the bill should simply read Protection against Sexual Harassment at Workplace Bill, 2010. All references to ‘woman/women’ should be replaced by ‘person/persons’, except for those provisions of the bill stipulating a proportion of women on the Internal and Local complaints committees. This is one of the recommendations which seem to be the most convincing one.

The other two recommendation are also made, the interested blogger may read by doing a Google search on this topic, so that that they can post their comment.

Yours Sincerely,

Mr. Unknown.

It all comes back which was gone once

The author feels that the life of law is like a circle,which revolve and come to the same place where it took a start. What so ever starts comes to an ends and then there is a new start which is the same as the old. Lets view the statement made above in the light of the amending power of the constitution of India. The Indian Constitution in Article 368 describes the amending power of the constitution. The Supreme Court for the first time was called upon in Sankari Prasad case as to adjudge the scope and nature of the power conferred upon the parliament under Art 368 of the Indian Constitution. The court held that the power to amend is a constituent power and thus the only limitation on the power is the procedural limitations stated in Art. 368. Later the court in Sajjan Singh case faced revolutionary views in the concurring judgement of  Justice Madholkar and Justice Hidituyalla, where the learned judges felt discomfort in accepting the views of the Supreme Court in Sankari Prasad case. As a story tale the kingdom of the parliament over fundamental rights was first captured by the Supreme Court in Golak Nath case, the court by a bare majority held that the power of the parliament to amend the constitution doesn't extends to the fundamental rights due to the limitations imposed by Art 13(2). 

A great disaster was made by the Supreme Court in this case, but as everyone knows that in this world of so called intellectuals, the court came up with a negotiation in the landmark case of Kesavananda bharti case, the court denied the false reasoning of the majority in Golak Nath case, and held that the parliament has no power to amend the basic structure of the constitution and the court very cunningly took the huge burden of laying down the so called basic structure on its shoulders. 

The basic structure was not a cure but a virus, like a virus it spread its side-effects on not only legislative power of the parliament but also to the executive case in Waman Rao case and S.R Bommai Case respectively. 

Was this the end, if yes then whether the statement made by the author is justified, no it is not still the death of the article, but from here the article starts its justification. In I.R Cohelo case court slowly engulfed Art. 21 and Art. 14 as the basic structure of the constitution. This was never laid in  Kesavananda Bharati, the only thing laid in that case was the judicial review as the basic structure of the constitution. The court in the name of basic structure of the constitution held the said rights to be outside the domain of the parliament as it was once done by Subha Rao in the Golak Nath case. It cast a impression on my mind that the court has accepted that which was once denied. Thus the life of law is a circle which revolve and come to the same place where it took a start. 

The lawyer's extra vision

Dear all,

This blog is created by a abstract person who just want to share and allow sharing views. This blog is not only for law students but for all who feels that the law laid by the Supreme Court is not the true nature of law.

The author of this blog, hope that the interested mind will show their interest and will like to become a part of this blog.The author regrets for non-disclose his ID, because he wants to live a life of isolation reading and understanding law and the views of his blogger.

Thanking You,

Yours Sincerely,

Mr. Unknown