Aruna Ramchandra Shanbaug v.

Union
Of India: Case Analysis
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una-ramchandra-shanbaug-v-union-of-
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January 7, 2015 by kudrat Leave a Comment

By Mounica Kasturi, Symbiosis Law School, Pune

Editors Note: Fundamental Rights are necessary for leading a dignified and fulfilling
life. Probably the most important Fundamental Right in the Indian Constitution is the
Right to Life under Article 21. It is a right that encompasses within its broad domain the
right to legal aid, right to a clean environment, and a plethora of other rights. The
question that came to be considered in the present case was whether inherent in this
sacred right is the right to die-whether a person can be allowed to control his death and
decide to end his life. Right to die has become important considering the advancement
in medical jurisprudence and also the possibility of misuse of this right by family
members. This case dealt with euthanasia in detail by distinguishing between active and
passive euthanasia. Laws relating to euthanasia in different jurisdictions were
considered. The court deleted into a scenario where the patient was incapable of giving
consent and specified who could approach the Court on his behalf. It also laid down
guidelines prescribing the situation and procedure of administering passive euthanasia.

INTRODUCTION
The Constitution of India guarantees Right to Life to all its citizens. The constant, ever-
lasting debate on whether Right to Die can also be read into this provision still lingers
in the air. On the other hand, with more and more emphasis being laid on the informed
consent of the patients in the medical field, the concept of Euthanasia in India has
received a mixed response.

The Honble Supreme Court of India, in the present matter, was approached under
Article 32 of the Indian Constitution to allow for the termination of the life of Aruna
Ramchandra Shanbaug, who was in a permanent vegetative state. The petition was
filed by Ms. Pinki Virani, claiming to be the next friend of the petitioner. The Court in
earlier cases has clearly denied the right to die and thus legally, there was no
fundamental right violation that would enable the petitioner to approach the court under
Article 32. Nonetheless, the Supreme Court taking cognizance of the gravity of the
matter involved and the allied public interest in deciding about the legality of euthanasia
accepted the petition.

FACTS
It was stated that 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. To immobilize her during this act he twisted
the chain around her neck. The next day, a cleaner found her in an unconscious
condition lying on the floor with blood all over. It was alleged that due to strangulation by
the dog chain the supply of oxygen to the brain stopped and the brain got damaged.

Thirty six years had lapsed since the said incident. She had been surviving on mashed
food and could not move her hands or legs. It wass alleged that there is no possibility of
any improvement in the condition and that she was entirely dependent on KEM
Hospital, Mumbai. It was prayed to direct the Respondents to stop feeding Aruna and let
her die in peace.

FINDINGS OF THE COURT APPOINTED DOCTORS

The respondents, KEM Hospital and Bombay Municipal Corporation filed a counter
petition. Since, there were disparities in the petitions filed by the petitioner and
respondents, the court decided to appoint a team of three eminent doctors to investigate
and report on the exact physical and mental conditions of Aruna Shanbaug.

They studied Aruna Shanbaugs medical history in detail and opined that she is not
brain dead. She reacts to certain situations in her own way. For example, she likes light,
devotional music and prefers fish soups. She is uncomfortable if a lot of people are in
the room and she gets distraught. She is calm when there are fewer people around her.
The staff of KEM Hospital was taking sufficient care of her. She was kept clean all the
time . Also, they did not find any suggestion from the body language of Aruna as to the
willingness to terminate her life. Further, the nursing staff at KEM Hospital was more
than willing to take care of her. Thus, the doctors opined that that euthanasia in the
instant matter is not necessary.

ISSUES RAISED
1. When a person is in a permanent vegetative state (PVS), should withholding or
withdrawal of life sustaining therapies be permissible or `not unlawful?
2. If the patient has previously expressed a wish not to have life-sustaining
treatments in case of futile care or a PVS, should his/ her wishes be respected
when the situation arises?
 3. In case a person has not previously expressed such a wish, if his family or next
of kin makes a request to withhold or withdraw futile life-sustaining treatments,
should their wishes be respected?

ANALYSIS
To be able to adjudicate upon the aforementioned issues, the court explained as to
what is euthanasia. Euthanasia or mercy killing is of two types: active and passive.
Active euthanasia entails the use of lethal substances or forces to kill a person e.g. 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, e.g.
withholding of antibiotics where without giving it a patient is likely to die, or removing the
heart lung machine, from a patient in coma.

A further categorization of euthanasia is between voluntary euthanasia and non-

voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the
patient, whereas non-voluntary euthanasia is where the consent is unavailable e.g.
when the patient is in coma, or is otherwise unable to give consent. While there is no
legal difficulty in case of the former, the latter poses several problems. The present case
dealt with passive non-voluntray euthanasia.

RIGHT TO DIE

In the case of State of Maharashtra v. Maruty Shripati Dubal,[i] the contention was that
Section 309 of the Indian Penal Code was unconstitutional as it is violative of Article 19
and 21. It was held in this case by the Bombay high court that right to life also includes
right to die and section 309 was struck down. The court clearly said in this case that
right to die is not unnatural; it is just uncommon and abnormal. In the case
of P.Rathinam v. Union of India,[ii] it was held that the scope of Article 21 includes the
right to die. P. Rathinam held that Article 21 has also a positive content and is not
merely negative in its reach. In the case of Gian Kaur v. State of Punjab,[iii]the validity
of Section 306 of the IPC was in question, which penalised the abetment of suicide.
This case overruled P.Rathinam but the court opined that in the context of a terminally
ill patient or one in the PVS, the right to die is not termination of life prematurely but
rather accelerating the process of death which has already commenced.[iv] Further, it
was also submitted that the right to live with human dignity[v] must also include a death
with dignity and not one of subsisting mental and physical agony.

Reliance was placed on the landmark judgement of Airedale NHS

Trust v. Bland,[vi] where for the first time in the English history, the right to die was
allowed through the withdrawal of life support systems including food and water. This
case placed the authority to decide whether a case is fit or not for euthanasia in the
hands of the Court. Also, in the case of Mckay v. Bergsted,[vii] the Supreme Court of
Navada, after due evaluation of the state interest and the patients interest, upheld the
permission for the removal of respirator. However, in the instant case, Aruna could
breathe by herself and did not need any external assistance to breath and thus,
distinguished from the Mckay case.

MEDICAL ETHICS

The Supreme Court dealt with the aspect of informed consent and right to the bodily
integrity of the patient as followed by the US after the Nancy Cruzan case[viii]. Informed
Consent is the kind of consent wherein the patient is fully aware of all the future courses
of his treatment, his chances of recovery, and all the side effects of all of these
alternative courses of treatment. If a person is in a position to give a completely
informed consent and he is still not asked, the physician can be booked for assault,
battery, or even culpable homicide. The concept of informed consent comes into
question only when the patient is able to understand the consequences of her treatment
or has earlier when in sound conditions made a declaration.

In this case, the consent of Aruna could not be obtained and thus, the question as to
who should decide on her behalf became more prominent. This was decided by
beneficence. Beneficence is acting in the patients best interest. Acting in the patients
best interest means following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations. Public interest and
the interests of the state were also considered. The mere legalisation of euthanasia
could lead to a wide spread misuse of the provision and thus, the court looked at
various jurisprudences to evolve with the safeguards.

GLOBAL APPROACH

The general legal position all over the world was 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. Certain countries
had passed legislations to allow for active euthanasia or doctor assisted suicide. In the
former, the physician or someone else administers it, while in the latter the patient
himself does so, though on the advice of the doctor.

Netherlands:

Euthanasia in the Netherlands is regulated by the Termination of Life on Request

and Assisted Suicide (Review Procedures) Act ,2002.
It states that euthanasia and physician-assisted suicide are not punishable if the
attending physician acts in accordance with the criteria of due care. These
criteria concern the patients request, the patients suffering (unbearable and
hopeless), the information provided to the patient, the presence of reasonable
alternatives, consultation of another physician and the applied method of ending
life.

Switzerland:
 Article 115 of the Swiss Penal Code considers assisting suicide a crime if, and
only if, the motive is selfish. The code does not give physicians a special status
in assisting suicide; although, they are most likely to have access to suitable
drugs. Ethical guidelines have cautioned physicians against prescribing deadly
drugs.
The Swiss law is unique because (1) the recipient need not be a Swiss national,
and (2) a physician need not be involved. Many persons from other countries,
especially Germany, go to Switzerland to undergo euthanasia.

USA:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in
the states of Oregon, Washington and Montana. Further, Washington and Montana also
have similar legislations in place. Countries like Belgium, Canada have also joined the
move. On the other hand, countries such as Spain, UK, do not express their solidarity
towards euthanasia.

JUDGEMENT
The Honble Division Bench of the Supreme Court of India, comprising Justice
Markandey Katju and Justice Gyan Sudha Mishra, delivered this historic judgment on
March 7, 2011. The Court opined that based on the doctors report and the definition of
brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain
dead. She could breathe without a support machine, had feelings and produced
necessary stimulus. Though she is in a PVS, her condition was been stable. So,
terminating her life was unjustified.

Further, the right to take decision on her behalf vested with the management and staff
of KEM Hospital and not Pinki Virani. The life saving technique was the mashed food,
because of which she was surviving. The removal of life saving technique in this case
would have meant not feeding her. The Indian law in no way advocated not giving food
to a person. Removal of ventilators and discontinuation of food could not be equated.
Allowing of euthanasia to Aruna would mean reversing the efforts taken by the nurses of
KEM Hospital over the years.

Moreover, in furtherance of the parens patriae principle, the Court to prevent any
misuse in the vested the power to determine the termination of life of person in the High
Court. Thus, the Supreme Court allowed passive euthanasia in certain conditions,
subject to the approval by the High Court following the due procedure. When an
application for passive euthanasia 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. 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. 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 doctors 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.

However, Aruna Shanbaug was denied euthanasia as the court opined that the matter
was not fit for the same. If at any time in the future, the staff of KEM hospital or the
management felt a need for the same, they could approach the High Court under the
procedure prescribed.

This case clarified the issues revolving around euthanasia and also laid down guidelines
with regard to massive euthanasia. Alongside, the court also made a recommendation
to repeal Section 309 of the Indian Penal Code. This case is a landmark case as it
prescribed the procedure to be followed in an area that has not been legislated upon.

Edited by Kudrat Agrawal

[i] 1987 (1) Bom CR.

[ii] 1994 SCC (3) 394.

[iii] (1996) 2 SCC 648.

[iv] Supra Note 3, 25.

[v] Vikram Deo Singh Tomar v. State of Bihar,1988 (Supp) SCC 734.

[vi] MHD (1993) 2 WLR 316.

[vii] 801 P.2d 617 (Nev. 1990).

[viii] Cruzan v. Director, Missouri Department of Health, 110 S. Ct. 2841.

[ix] Supra note 2.

[x] Supra note 3

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Aruna Ramachandra Shanbaug v. Union of India and others

Date of judgment 07 March, 2011
Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital,
Parel, Mumbai. In 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. To immobilize her
during this act he twisted the chain around her neck. The next day a cleaner found her lying on
the floor with blood all over in an unconscious condition. It is alleged that due to strangulation
by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. The
Neurologist in the Hospital found that 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. 36 years had expired since the incident and Aruna Ramachandra Shanbaug
was about 60 years of age. It was alleged that Aruna Ramachandra Shanbaug was in a persistent
vegetative state (p.v.s.) and virtually a dead person and had no state of awareness, and her brain
was virtually dead. It was alleged that there is not the slightest possibility of any improvement in
her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and
this has been the position for the last 36 years. The prayer of the petitioner was that the
respondents be directed to stop feeding Aruna, and let her die peacefully.

Whilst the Supreme Court had held earlier that there was no right to die (suicide) under Article
21 of the Constitution and attempt to suicide was a crime vide Section 309 IPC, the Court had
held that the right to life include the right to live with human dignity, and in the case of a dying
person who was terminally ill or in a permanent vegetative state he may be permitted to
terminate it by a premature extinction of his life in the circumstances and it was not a crime.
Discussing the concept of Euthanasia, it observed that Euthanasia is of two types: active and
passive. Active euthanasia entail the use of lethal substances or forces to kill a person e.g. a
lethal injection given to a person with terminal cancer who is in terrible agony. Passive
euthanasia entail withholding of medical treatment for continuance of life, e.g. withholding of
antibiotics where without giving it a patient is likely to die, or removing the heart lung machine,
from a patient in coma. The general legal position all over the world seem 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 difference between "active" and "passive" euthanasia is that in active euthanasia, something
is done to end the patient's life while in passive euthanasia, something is not done that would
have preserved the patient's life. An important idea behind this distinction is that in "passive
euthanasia" the doctors are not actively killing anyone; they are simply not saving him.
Euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who
is capable of deciding for himself decides that he would prefer to die, and for this purpose he
consciously and of his own free will refuses to take life saving medicines. In India, if a person
consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Non
voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g.,
if he is in coma or PVS. The present is a case where we have to consider non voluntary passive
euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.

Culminating the discussion the Supreme Court held that the law is now fairly well settled that in
the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and
withdraw the artificial life support system if it is in the patients best interest, the said act cannot
be regarded as a crime.
The question remained as to who is to decide what is the patients best interest where he is in a
persistent vegetative state (PVS)? Most decisions have held that the decision of the parents,
spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive.
It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the
patient, though the wishes of close relatives and next friend, and opinion of medical practitioners
should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A
Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the
Sovereign as parens patriae will adopt the same standard which a reasonable and responsible
parent would do. The parens patriae (father of the country) jurisdiction was the jurisdiction of the
Crown. This principle laid down that as the Sovereign it was the duty of the King to protect the
person and property of those who were unable to protect themselves. The Court, as a wing of the
State, had inherited the parens patriae jurisdiction which formerly belonged to the King.

In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309
of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as
USA where attempt to suicide is not a crime. The Supreme Court recommended to Parliament to
consider the feasibility of deleting Section 309 from the Indian Penal Code.

It was alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of
Aruna Shanbaug) that in fact Aruna Shanbaug was already dead. The question to be decided was
as to when a person could be said to be dead ? After considering the report of Committee of
doctors, the Supreme Court held that Aruna had some brain activity. She also recognized that
persons are around her and expressed her like or dislike by making some vocal sound and
waving her hand by certain movements. Aruna Shanbaug met most of the criteria for being in a
permanent vegetative state. From the examination by the team of doctors, it could not be said
that Aruna Shanbaug was dead. The next question was whether her life support system should
be withdrawn, and at whose instance? The Supreme Court observed that there is no statutory
provision 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. It held that passive euthanasia
should be permitted in certain situations.

The Supreme Court laid down the following law until Parliament made a law on the subject:
(i) A decision had 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 could be taken even by a
person or a body of persons acting as a next friend. It could also be taken by the doctors
attending the patient. However, the decision should be taken bona fide in the best interest of the
patient.
In the present case, the Supreme Court held that KEM hospital staff were really Arunas next
friend and it was for the KEM staff to take a decision and the KEM staff had clearly expressed
their wish that Aruna Shanbaug should be allowed to live.
(ii) Hence, even if a decision was taken by the near relatives or doctors or next friend to
withdraw life support, such a decision require approval from the High Court concerned.

In the opinion of the Supreme Court, while giving great weight to the wishes of the parents,
spouse, or other close relatives or next friend of the incompetent patient and also giving due
weight to the opinion of the attending doctors, the approval of the High Court should be taken.
This would also be in consonance with the doctrine of parens patriae. The Supreme Court
observed that Article 226 gave abundant power to the High Court to pass suitable orders on the
application filed by the near relatives or next friend or the doctors/hospital staff praying for
permission to withdraw the life support to an incompetent person of the kind above mentioned.
When such 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. 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.
Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the
third a physician. 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. Simultaneously with
appointing the committee of doctors, the High Court Bench should 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 doctors 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. The views of the near relatives and committee of doctors should be given due weight by
the High Court before pronouncing a final verdict which should not be summary in nature. With
these observations, the petition was dismissed.