Author : Vishnu Gopal T V, Student at Co-operative School of Law, Thodupuzha, Kerala.
Aruna Ramachandra Shanbaug v. Union of India, is one of the most renowned cases which urged for the need to change the Euthanasia laws in India. The Case discussed the constitutionality of Passive Euthanasia and had checked whether Right to die will come under the meaning of Article 21 of the Indian Constitution. The case also analyzed the question whether section 309 of the IPC 1860 is penal in nature or not. The Hon’ble Division Bench of Supreme Court comprising of Justice Markandey Katju and Justice Gyan Sudha Misra delivered the renowned judgment of this Case. Even though the Judgment made in this case was overruled afterwards this case however has its own significance.
FACT OF THE CASE
Here in this Case, the Petition was filed by Ms. Pinki Virani on behalf of the Petitioner Aruna Ramachandra Shanbaug, who was a staff nurse working at King Edward Memorial Hospital, Parel Mumbai. She was attacked by a sweeper in the hospital in an evening on 27th November, 1973. She was attacked by the sweeper of the hospital who wrapped a dog chain around her neck and yanked her back with it. The sweeper attempted to rape her but she was menstruating at that time. Seeing that she was menstruating, he sodomized her. To immobilize her from doing this act he twisted the chain around her neck.
On the next day morning a cleaner found her lying unconscious in the floor with blood all over. It is alleged that the supply of oxygen to the brain has stopped due to strangulation of the dog chain and the brain has got damaged. She was in a Permanent vegetative state (PVS).
She was still continuing in Permanent vegetative state (PVS) for the last 37 years and was surviving on mashed food. She couldn’t move her hands and legs. It was the KEM Hospital staffs who were treating her for the last 37 years. It was also alleged that there were no possibility of any improvement and she was completely dependent on the KEM Hospital. The prayer of the petitioner was to allow passive Euthanasia for Aruna Ramachandra Shanbaug and let her die peacefully.
ANALYSIS BY THE DOCTORS APPOINTED BY THE COURT
A counter petition was filed by the respondent, KEM Hospital. The Court found certain dissimilarities regarding the condition of the patient mentioned in the petitions filed by the petitioner and the respondent and the Court has appointed a team of doctors for studying accurate physical condition of the patient.
After studying the conditions of the Patient the appointed doctors’ team opined that Aruna is neither brain dead nor in Coma. She was in Permanent Vegetative State (PVS). PVS is defined as a clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable circulation and show cycles of eye closure and opening which stimulates sleep and wakening. She is able to take mashed food and a spoon full of water through the mouth. The doctors also mentioned that KEM Hospital authorities are rendering good nursing care for her and the staff also kept her bed and room clean always. The doctors opined that they do not think there exists a need to terminate her life.
ISSUES RAISED IN THIS CASE
- Whether Passive Euthanasia can be allowed for a person in Permanent Vegetative State (PVS)?
- Who is the appropriate surrogate of Aruna Ramachandra Shanbaug to decide whether Passive Euthanasia should be allowed or not?
ANALYSIS OF VARIOUS ASPECTS
Concept of Euthanasia:- In this Case the Court had explained the concept of euthanasia. Euthanasia is of two types, active euthanasia and passive euthanasia. In active euthanasia lethal substances are injected to kill a person. Passive euthanasia means withholding of medical treatment which will leads to the dying of the person. Euthanasia can be further classified into two, voluntary euthanasia and non-voluntary euthanasia. In case of voluntary euthanasia the consent is taken from the patient for doing the act. In case of non voluntary euthanasia the patient is incompetent to take decision so that the consent is unavailable. So this is purely the case of Passive non voluntary euthanasia.
Right to Die:- In the Case State of Maharashtra v. Maruty Shripati Dubal the Court struck down Section 309 of IPC and held that it contains ultra virus to Article 21and 19 and declared that Right to Life guaranteed under Article 21 include Right to live as well as right to die. In the case P. Rathinum v. Union of India the Court again highlighted the opinion that Right to life include Right to Die. Thus Section 309 of the IPC was declared as unconstitutional. In another Case Gian Kaur v. State of Punjab, the Court overruled the judgment made in P. Rathinum v. Union of India and held that, The Right to life guaranteed under Article 21 of the constitution does not include Right to die and upheld the validity of Section 306 and 309 of IPC.
In a famous English Case Airedale NHS Trust v. Bland the House of Lords for the first time in the English history permitted the Right to Die by withholding the life support system of a patient who is in Permanent Vegetative State (PVS) who was having a severe brain damage. The court in case of Aruna Shanbaugh’s case noted that even though she is in PVS but her medical condition is much improved than the patient considered in Airedale case. In another famous Case, Mckay v. Bergster, the Supreme Court of Nevada held that, the permission for removal of the respirator can be considered after considering the State interest and the interest of the patient. Here in the Case of Aruna Ramachandra Shanbaug the patient is incompetent to decide whether passive euthanasia should be allowed or not.
One of the important question that arise in this case is that in a situation where Aruna Shanbaug is incompetent to take a decision regarding the withdrawal of her life who appears to be the appropriate surrogate of her to decide regarding the matter of passive euthanasia. The surrogate here must be a person who will act upon the best interest of the patient and should not be influenced by other personal convictions, motives and special interests. Another important problem regarding the legislation of euthanasia is that the mere legislation of euthanasia itself may leads to wide misuse of this provision.
Law commission report, 2006
The case also had looked into the Law commission Report of 2006  which recommended for a law to protect the terminally ill patients who refuse medical treatment, artificial nutrition from section 309 of IPC. The report also suggested that the doctors who obey such decisions and acting accordingly must be protected from offences under section 306 or section 299 of IPC. The commission also argued that the law must be named as ‘The Medical Treatment of Terminally ill Patients Act”. The commission also listed certain conditions such as, the patient must be suffering from a terminal illness, the illness must be irreversible, The doctor must consider the opinion of the family of the patient, Although the doctor is the appropriate person to take such a decision and before withdrawing the treatment of an incompetent patient the doctor must inform in written to the patient and family.
The Hon’ble Division Bench of Supreme Court comprising of Justice Markandey Katju and Justice Gyan Sudha Misra delivered the renowned judgment of this Case on March 7, 2011. The Court held that, Aruna Ramachandra Shanbaug is not brain dead. She is neither in Coma stage also. She is in Permanent Vegetative State (PVS). Though she is in PVS she is in a stable condition. She could breathe without the help of anything. She is able to take mashed food and a spoon of water directly through the mouth. She is also responding to stimulus. Therefore terminating her life is clearly an unjustified thing.
The court also pointed out that the management and the staffs of KEM Hospital is the real appropriate surrogate of Aruna and Ms. Pinki Virani is not the appropriate surrogate. The right to take decision is vested with the management and staffs of KEM Hospital because they have taken care of her for the last 37 years. The Court also appreciated the excellent nursing care delivered by the staffs of KEM Hospital. Here the life sustain thing of Aruna is the mashed food. And removing the life sustain treatment here means to stop feeding her. Removing the ventilators and discontinuing the feeding cannot be considered as equal. When passive euthanasia is allowed to Aruna then all the excellent nursing care, treatment and efforts taken by the KEM hospital staffs and doctors will go drain. So, passive euthanasia cannot be permitted for Aruna.
In the final judgment, the bench held that active euthanasia cannot be accepted because the low ethical levels prevailing in our society will leads to the misuse of it. That means immoral persons with the help of immoral doctors may fabricate material to show that it is irreversible case with no recovery chance.
The Court however held that passive euthanasia should be legalized. The power to decide regarding passive euthanasia is not given to the family or doctors completely. Instead the court stated that “Article 226 gave power to the High Court to pass suitable order on the application filed by close relatives/close friend/ doctors/ hospital staff for granting permission to withdraw the life support to an incompetent person of the kind above mentioned”. A bench of at least 2 judges must be formed and should decide whether to grant approval or not, based upon the opinion of the committee of 3 approved doctors appointed by the court for this purpose.
The court also made a recommendation to repeal Section 309 of IPC. So, Aruna Ramachandra Shanbaug v. Union of India is clearly a land mark case which had made a procedure that should be followed for allowing passive euthanasia in case of an incompetent patient.
QUESTIONS THAT STILL EXIST
Although this case clarified upon the circumstances and the steps to be followed for approval of passive euthanasia the Court didn’t expressly mentioned about the point whether “The Right to Die with dignity” will come under the meaning of Article 21 which provides us “The right to live with dignity”. The Court also didn’t give a suitable clarification regarding the matter that, if a person is going through a terminal illness and if he is competent, whether he can decide regarding the termination of his life or not. The judgment also lacks clarity regarding the matter that whether Right to live include the concept of right to die with dignity without suffering unbearable pain during the medical treatment. Although “The Right to die” has been added to the fundamental right after the landmark judgment in the Case, Common Cause v. Union of India.
Aruna Ramachandra Shanbaug v. Union of India; is a land mark case because it permitted passive euthanasia to those patients in PVS under strict procedures. The judgment delivered in this case had clarified; under what circumstances passive euthanasia can be allowed and also pointed out the procedure that should be followed by the Court in deciding such a matter. In this case Court had rejected Active euthanasia and had given the reasons for that in the judgment. Even though the case had clarified the issues that were revolving around euthanasia, it is a true fact that still in India we don’t have an express legislation governing the matter of Passive euthanasia.
 Aruna Ramachandra Shanbaug vs Union Of India (4 SCC 454)
 Maruti Shripati Dubal vs State Of Maharashtra ( 1987 (1) BomCR 499, (1986) 88 BOMLR 589)
 PRathinam vs Union Of India, AIR 1844 ( SCC (3) 394)
 Smt Gian Kaur vs The State Of Punjab, AIR 946, 1996 (SCC (2) 648)
 Airedale National Health Service Trust v Bland, AC 789 (House of Lords )
 McKay v Bergster 801 P2d 617 (Supreme Court of Nevada)
 “MEDICAL TREATMENT TO TERMINALLY ILLPATIENTS (PROTECTION OF PATIENTS AND MEDICAL PRACTITIONERS)” (LAW COMMISSION OF INDIA, 196TH REPORT) <http://lawcommissionofindia.nic.in/reports/rep196.pdf>
 “Aruna Ramachandra Shanbaug vs Union Of India & Ors ”<https://indiankanoon.org/doc/235821/> accessed October 16, 2020
 Common Cause v Union of India ( 5 SCC 338)