Passive ruling

The Supreme Court judgment denying Aruna Shanbaug the right to die with dignity raises important questions.

in New Delhi

IN Aruna Ramachandra Shanbaug vs Union of India and Others, the Supreme Court Bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra had to deal with significant minefields. The Bench could not tread all of them with equal success, as the huge debate it has set off on its decision to permit passive euthanasia testifies.

The petitioner in this case is Aruna Ramachandra Shanbaug, who once worked as a staff nurse in King Edward Memorial (KEM) Hospital, Parel, Mumbai. On the evening of November 27, 1973, a sweeper in the hospital 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 sodomised her. To immobilise her during this act, he twisted the chain around her neck. Strangulation by the dog chain cut off the supply of oxygen to the brain, and the brain got damaged. She had plantars' extensor, which indicated damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury.

The judgment, delivered on March 7, described her condition, as alleged in the petition, thus: She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. 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. She is in a persistent vegetative state (p.v.s.) and virtually a dead person and has no state of awareness. PVS is a clinical condition of unawareness of self and environment in which the patient breathes spontaneously, has a stable blood circulation and shows cycles of eye closure and opening which may simulate sleep and waking.

As this has been Aruna's state for the past 36 years, Pinki Virani, who filed the petition on her behalf claiming to be her next friend, sought the court's directions to stop feeding her and let her die peacefully.

At the outset, the Bench made it clear that there was no violation of a fundamental right, as the right to life guaranteed by Article 21 of the Constitution did not include the right to die. Under Article 32 of the Constitution, any writ petitioner before the Supreme Court has to prove prima facie violation of a fundamental right. A writ petitioner before a High Court, on the contrary, is covered under Article 226, which does not impose a similar restriction. Although the petition on Aruna's behalf was filed under Article 32, it did not cite any violation of a fundamental right. Therefore, the Supreme Court almost conceded that it had no jurisdiction to hear the matter; yet, it went ahead to go deeper into the merits of the case in view of the importance of the issues involved. Observers, therefore, wondered whether the Supreme Court had the legal authority to hear the matter, in view of its professed lack of jurisdiction.

The Bench, which ignored its lack of jurisdiction to hear the matter, noted certain glaring gaps between the facts as alleged in Aruna's petition and the affidavit filed by Dr Amar Ramaji Pazare, professor and head of KEM Hospital. In this affidavit, Pazare claimed that Aruna accepted her food and responded by facial expressions. He also revealed that she responded 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.

Because of this factual discrepancy, the court requested a team of very distinguished doctors of Mumbai to examine her and submit a report about her physical and mental condition.

The team noted in its report that the hospital staff had provided her excellent nursing care since her admission in the hospital following the assault on her. The care included feeding her by mouth, bathing her and taking care of her toilet needs. The care was of such an exceptional nature that she had not developed a single bedsore or fracture in spite of her bedridden state since 1973, the team said.

Other aspects of Aruna's condition identified by the team are:

Though she is not very much aware of herself and her surroundings, she somehow recognises the presence of people around her and expresses her likes or dislikes by making certain types of vocal sounds and by waving her hands in certain ways.

She appears to be happy and smiles when she receives her favourite food items like fish and chicken soup.

She was able to take oral feeds until September 16, 2010, when she developed a febrile illness, probably malaria. After that, her oral intake was reduced and a feeding tube (Ryle's tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryle's tube and is only occasionally able to accept oral liquids.

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 played in her room, and it has a calming effect on her.

The staff members of the hospital are compassionate to her, and they do not feel that Aruna is living a painful and miserable life.

The team recommended that any decision regarding Aruna's treatment should be taken by a surrogate as her own views or wishes about continuing life-sustaining treatment could not be gathered from her, and that the dean of KEM Hospital was her appropriate surrogate. Dr Sanjay Oak, the dean, opposed euthanasia for Aruna, saying she meant a lot to KEM Hospital. He asked why Pinki Virani, who had nothing to do with her, had to worry when those looking after her did not have a problem.

Dr Oak, however, admitted that Aruna had been lying in a bed in a single room for 33 years and that she was not able to stand or walk. The hospital staff, he said, feared that she was fragile and that her bones would break if she fell. He said her smiles were not purposeful, and it would be improper to interpret them as a signal of gratification. He told the court that the staff cared for her not as a part of duty but out of a feeling of oneness and that they were determined to take care of her until the end. He then pleaded that any mature society is best judged by its capacity and commitment to take care of its invalid ones.

Admiring the compassion and commitment of the hospital staff in looking after Aruna, the Supreme Court Bench observed that the whole country must learn the meaning of dedication and sacrifice from them. The Bench then declined to consider Pinki Virani as Aruna's next friend (even while holding Pinki Virani in high esteem) as she did not have a close emotional bonding with her unlike the KEM Hospital staff.

The Bench's decision to treat Aruna's caregivers as deciders of her fate has surprised observers. The Bench gave the option to the KEM Hospital staff to approach the High Court whenever they should choose to stop feeding her. The Bench's dismissal of Pinki Virani as Aruna's next friend appeared perfunctory.

The Bench's distinction between active and passive euthanasia is debatable. It held the former illegal, while holding the latter permissible. Active euthanasia entails the use of lethal substances or forces to kill a person; for example, a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life. This involves, for example, withholding of antibiotics where a patient is likely to die without it or removing the heart-lung machine from a patient in coma.

On the basis of this understanding, Aruna's case involved neither active nor passive euthanasia. As she is not under any life-support system, the question of withdrawal of any medical assistance meant to prolong her life does not arise. Yet, the Bench considered Aruna's case as one of non-voluntary passive euthanasia, found a legal vacuum on the subject, and went ahead to fill it without resolving the consequent issues. In other words, in active euthanasia, something is done to end the patient's life, while in passive euthanasia, something that would have preserved the patient's life is not done. Non-voluntary passive euthanasia implies that the patient is not in a position to decide for herself, if she is in coma or PVS.

The Bench refused to consider what would have been a relevant issue in the case of Aruna: whether not taking food consciously and voluntarily with the aim of ending one's life is a crime under Section 309 (attempt to commit suicide) of the Indian Penal Code and whether in the case of a patient who is not able to decide for herself, a surrogate can decide on her behalf.

Euthanasia is also distinct from physician-assisted suicide, which is legal in many countries, but not in India. According to the Bench, the general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal, even without legislation, provided certain conditions and safeguards are maintained.

The Bench surveyed the legal position with regard to euthanasia in the Netherlands, Switzerland and Belgium. Both the Netherlands and Belgium permit euthanasia with certain conditions, while Switzerland permits assisted suicide but not euthanasia. The Bench noted that both euthanasia and physician-assisted suicide were illegal in the United Kingdom, Spain, Austria, Italy, Germany and France. The Bench also found that active euthanasia was illegal in all States in the United States, but physician-assisted dying was legal in the States of Oregon, Washington and Montana.

The Bench found that in India, if a person consciously and voluntarily refused to take life-saving medical treatment, it would not be a crime. Agreeing with the view that Aruna would continue to be in PVS until her death, the Bench asked whether her life-support system (the process of feeding) should be withdrawn and at whose instance. The Bench rejected the Union of India's view that passive euthanasia should never be permitted and laid down the rules to regulate it until Parliament makes a law on the subject.

Thus, according to the Bench, 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 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 bona fide, in the best interest of the patient. Secondly, such a decision requires approval from the High Court, in order to prevent mischief by relatives or others for inheriting the property of the patient.

Rajeev Dhavan, an expert on constitutional matters and a well-known commentator, has observed that there is a rich-and-poor divide which flows as a socio-economic consequence of this judgment. He asks: If a poor person does not want to accede to even passive euthanasia, will the state provide health care? If not, is this judgment only for the rich?

The judgment does not have the answers. There is one more irony. In voluntary passive euthanasia, patients can legally decide to stop feeding, even if feeding forms part of the life-support system. In non-voluntary passive euthanasia, should the next friend of the patient not consider what would have been the patient's decision if she was capable of taking it herself? Which decision would be in the best interest of the patient should not be mixed up with the need to prolong the patient's life (as if prolonging the life, even if the quality of such life is poor, would be in the best interest of the patient).

The Bench appears to have been carried away by KEM Hospital's enthusiasm to take care of Aruna either because she worked there or because it believes that society should not abandon such patients. The correct approach would have been to ask the surrogate of a PVS patient whether prolonging the life of such a patient would make any difference to the quality of her life. KEM Hospital has clearly replied that it does not expect the quality of Aruna's life to improve. It is reasonable to suggest that if Aruna was capable of communicating her decision, she might have opted to discontinue feeding rather than continue in PVS for the rest of her life. The question whether the court was more concerned with the hospital's image than the quality of Aruna's remaining life will continue to haunt India.