‘It is a person’s right’

PINKI VIRANI’s crusade for a dignified death via passive euthanasia for Aruna Shanbaug, a nurse who had been raped and assaulted so brutally that she remained in persistent vegetative state (PVS) for 42 years, has finally come to an end. Pinki Virani’s relentless battle, including filing a case in the Supreme Court, has been acknowledged as a turning point in India’s stance on passive euthanasia. The March 2018 judgment on legalising passive euthanasia, through advance directives and a living will, is considered a historic one. Excerpts from an interview Pinki Virani gave Frontline :

The March 2018 Supreme Court ruling draws from the Aruna Shanbaug case which you filed in 2009. How advanced is this judgment from the 2011 ruling which recognised passive euthanasia and was also hailed as a landmark ruling?

The 2018 judgment upholds the 2011 judgment, since known as the Aruna Shanbaug judgment, which permits passive euthanasia for all irreversibly ill Indians—in PVS, after brain death, or on pointless ventilator [to be differentiated from when the ventilator could assist recovery]. The 2018 judgment not only validates the Aruna Shanbaug judgment, which clearly states that it stands as law until Parliament rejects or ratifies it, but goes further in linking it, interestingly, to Article 21, which secures the right to life [and personal liberty]. Ergo, dying with dignity is as much a person’s right if she or he so chooses. Let us remember, passive euthanasia is a choice, over control: be it religious, medical, societal, financial. The 2018 judgment extends this choice of passive euthanasia to leaving a “living will”—an advance directive, actually—for any person who would want to stipulate that if, and when, they are in an applicable position, they would want their advance directive to be followed. The 2011 judgment says those patients who qualify for passive euthanasia can, after due safeguards, be confirmed by a joint decision of families and doctors. The 2018 judgment does not alter this if no advance directive has been signed.

The medical and legal community have hailed the 2018 ruling as an erudite and impassioned judgment. But there are critics.

The 2018 judgment by the five-judge Constitution Bench has delivered a virtual PhD on compassion vis-a-vis passive euthanasia, dying with dignity, the right to privacy, patient autonomy through an advance directive, bodily integrity versus meaningless medical body invasion. What’s interesting to me is the legal literacy which has been slowly settling in around passive euthanasia. Between 2009 and 2011, and a little after the Aruna Shanbaug judgment, there were placards saying, “Pinki Virani murdabad” [Down with Pinki Virani]. I was being accused of wanting to “starve a human being to death”. The reactions from the churches/temples/masjids continue to be the same, though—it is their perceived loss of control, really—and includes “It’s the Almighty who decides.” That is philosophy and deserves respect, but in practical terms are these very people not buying health insurance to fight against what they prefer to see as divine will for others, when they themselves wind up in ICU?

Are there aspects of the law that you believe still need to be addressed? Would there be additional safeguards required for the advance directives?

The law is now legally settled around both passive euthanasia and advance directives. But there is some area of confusion between advance directives permitted in the Mental Healthcare Act and what is laid down in the 2018 judgment, even though the former is only for future mental health deterioration. However, the delivery of such laws needs to be uniformly considerate. There cannot be that kind of discrimination which could also be bent to be treated as loopholes, citing one law against another. A Parliament-passed law is required, but this is going to be a long-drawn election season, isn’t it?

It has been a protracted and public battle for you since you took up Aruna Shanbaug’s case. Will this be closure to the issue you have pursued for several years?

I hope so! In 2011 there was the Aruna Shanbaug judgment. Thereafter, the Law Commission changed its stance on passive euthanasia and said they were all for it, citing the 2011 judgment. Then the Government of India approved an additional quota of morphine to hospitals—it was being rationed somewhat till then—when their collective groups cited the Aruna Shanbaug judgment. The 2011 judgment granting passive euthanasia forced into medico-legal reality the term PVS, and medical bodies were able to make a cohesive case against restricted rationing of morphine. Then came the anti-rape law, post-Nirbhaya, and one was able to ensure that the clause on PVS—that the perpetrator of sexual assault should be treated on a par with a murderer if he put the victim in PVS—was inserted. As is known, and that’s how Aruna’s sodomiser and strangler walked a free man in seven years—there was no punishment in the books for something between “attempt to murder” and “murder”. The anti-rape law now seeks to provide justice to women on this count. One can’t take sole credit for pushing the 2011 judgment requirement that suicide be decriminalised. It was a joint effort by many private citizens such as myself, but copies of the judgment—carefully highlighted—were certainly couriered with covering letters and followed up with emails and phone calls. Suicide has been decriminalised in the Mental Healthcare Act, though, of course, “abetment to suicide” stands as indeed it should. And now in the 2018 judgment, the upholding of passive euthanasia provides the welcome option of advance directives. One woman, denied the very law she brought forth, has led to a cascade of rulings which so positively impact the lives of all Indians. The world’s worst case of PVS and sexual assault leaves behind, and lives on in, her legacy.

Could you tell us about why you fought this battle?

I could tell you that I am interested in the intersection of bioethics and law. That my grounding as a journalist makes me feel obliged to be the voice of those who have none. That I strongly believe in individual rights, even as I underline that all rights come with responsibilities. All this would be true. But this, too, is true—I don’t know why I fought this fight. Somebody had to do it, no one did, and then it was left to me.