TY - JOUR AU1 - Rao, Sushila AB - ‘It is my belief that death is a friend to whom we should be grateful, for it frees us from the manifold ills which are our lot.’ Mahatma Gandhi1 The debate surrounding the legalisation of euthanasia in India has proven both protracted and intractable. In many ways, the deliberations have meandered along predictable lines: opponents cry themselves hoarse about the ‘sanctity of life’ being violated by self-styled angels of death, and cite eclectic religious authorities to shore up their claim.2 Proponents of a more liberal view, on the other hand, insist that a ‘right to life’3 must include a concomitant right to choose when that life becomes unbearable or not worth living.4 They point to permissive laws in foreign jurisdictions such as the Netherlands and Oregon as being more in tune with a rights-oriented culture.5 On 7 March 2011, the Indian Supreme Court delivered a ‘path-breaking’ judgment in the case of Aruna Ramchandra Shanbaug v Union of India6 (hereinafter Aruna), permitting ‘passive euthanasia’ in certain circumstances. This judgment has thrust the issue firmly back in the media's spotlight,7 and galvanised votaries and adversaries alike. It is hoped that the public reaction, as well the Court's pleas for legislation on the subject, will soon bear fruit in the form of a nuanced and deliberated law. This note seeks to provide a brief overview of the current position of the law in India, as also to highlight salient socio-economic factors that further complicate the ‘right-to-die’ debate. For the purposes of this note, ‘active euthanasia’ generally refers to steps taken to deliberately induce death, whereas ‘passive euthanasia’ infers doing nothing and letting nature take its course.8 I. CASE LAW PRIOR TO ARUNA It must be noted at the outset that an attempt to commit suicide, as also any abetment of the commission of suicide, is a crime in India.9 The constitutionality of these provisions, which necessarily have a bearing on the euthanasia debate, has been previously challenged in the Supreme Court. In Rathinam,10 a two-judge Bench of the Indian Supreme Court held that the criminalisation of an attempt to commit suicide was unconstitutional. It answered the question as to whether a person who has the right to live, also possesses an attendant right to not live, in the affirmative. The Court stated that all the fundamental rights in Part III of the Constitution of India must necessarily be read together, and thus what is true of one fundamental right, is also true of the other rights.11 Drawing analogies with the freedom of speech and expression, as also the freedom of movement and association, all of which have a positive as well as a negative aspect,12 the Court pronounced that the right to life under Article 21 of the Constitution of India also includes a right to terminate one's own life.13 However, this pronouncement was promptly overruled by a larger Bench of five judges in Gian Kaur.14 The Court adopted a narrower reading of Article 21 and held that by no stretch of imagination could the ‘extinction of life’ be read to be included in a provision guaranteeing the ‘protection of life’. Emphasising the principle of the ‘sanctity of life’, it held that suicide is an unnatural termination or extinction of life, and therefore, incompatible and inconsistent with the concept of ‘right to life’.15 Interestingly, though, the Court in Gian Kaur seemed amenable to an exception being made for euthanasia in cases of patients in a condition of PVS. It noted that a right to life, including the right to live with human dignity, would also include the right to a dignified life up to the point of death, thereby including a dignified procedure of death. Hence, it may encompass the ‘right of a dying man to also die with dignity when his life is ebbing out’.16 The reasoning of the Court was as follows: This category of cases may fall within the ambit of the ‘right to die’ with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced.17 One may argue that such a sweeping endorsement of a dignified death in PVS cases could countenance even active euthanasia, whose supporters would claim that it merely hastens a death caused by the underlying medical condition. Nonetheless, the laws criminalising suicide in general have remained intact after the Gian Kaur verdict. II. THE ARUNA CASE The facts of the Aruna case involved a Writ Petition filed by a journalist claiming to be Aruna's ‘next friend’ under Article 32 of the Constitution of India (which empowers individuals to directly approach the Supreme Court, in case of the violation of a Fundamental Right).18 Aruna Ramachandra Shanbaug was a staff nurse working in King Edward Memorial Hospital, Mumbai (the Hospital). On 27 November 1973, she was sexually assaulted. Her assailant simultaneously strangulated her with a dog chain, due to which the supply of oxygen to her brain was disrupted. She also sustained a brain stem contusion injury with an associated cervical cord injury. It was alleged by the Petitioner that 38 years hence, Aruna was about 60 years of age, and in a Persistent Vegetative State (PVS) with no state of awareness, and a virtually dead brain. The Writ Petition accordingly sought a direction from the Supreme Court to the effect that the Respondent (the Dean of the Hospital) be directed to stop feeding Aruna, in order to enable her to die peacefully. Thus, this case raised for the first time in the Indian Supreme Court the same question that English courts grappled with in the Bland19 decision: in what circumstances, if any, can a doctor lawfully discontinue life-sustaining treatment (including nutrition and hydration) without which the patient will die? On 24 January 2011, the Court appointed a team of three distinguished doctors to examine Aruna. The medical team concluded that Aruna was neither brain dead,20 nor in a coma.21 She was diagnosed with ‘non-progressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation’.22 She thus met the key criteria for being in a 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 shows cycles of eye closure and opening which may simulate sleep and waking.23 It was finally concluded that presently there was no treatment available for the brain damage she had sustained. In a rather myopic reading of Gian Kaur –in light of the observations therein pertaining to PVS cases –the Court stated that it could have cursorily dismissed the Writ Petition for lack of a violation of a fundamental right, since there was no constitutional right to die.24 Nonetheless, in view of the ‘importance of the issues’, the Court decided to delve into the merits of the case. Conscious of the Herculean nature of its task, it compared itself to ‘a ship in an uncharted sea’,25 and explicitly sought guidance from legislation and judicial pronouncements in foreign countries, in particular the UK and the USA. Three crucial issues in Indian medical jurisprudence were identified and tackled by the Court. A. When is a person legally ‘dead’? Though it started off by making a needlessly controversial statement to the effect that ‘one is one's brain’,26 the Court endeavoured to bring some clarity to the issue of when a person can be legally considered ‘dead’ under Indian law. The historical evolution of the understanding of death from a cardio-pulmonary perspective to today's brain-centric definitions need not detain us here. What is notable is that the Court appeared to implicitly recognise that the meaning of ‘death’ may need to be determined differently, depending upon the contextual purpose.27 It cited with seeming approval the definition in the American Uniform Determination of Death Act 1980, according to which an individual who ‘sustain[s] irreversible cessation of all functions of the entire brain, including the brain stem, is dead’.28 This stage, according to the Court, was reached at a situation where not only consciousness, but every other aspect of life regulated from the brain could no longer be so regulated. Based on this assessment, the Court held that Aruna was certainly not already legally ‘dead’, but was in a PVS. Thus, it became imperative for the Court to delineate the essential pre-requisites for determining whether the life of an incompetent person who was not legally ‘dead’ could permissibly be ended. These were identified as the following: a. When a person is only kept alive mechanically, i.e. when she has not only lost consciousness, but is also only able to sustain involuntary functioning through advanced medical technology, such as the use of heart-lung machines, medical ventilators, etc.; and b. When there is no plausible possibility of the person ever being able to come out of this stage, i.e. the condition is irreversible.29 B. ‘Best Interests’ versus ‘Substituted Judgment’ Aruna's case was one of ‘non-voluntary passive euthanasia’ since she was not mentally competent to give her consent.30 Thus, the question of what standard should be used to determine the apposite course of action was crucial. The Court referred to both the British and American approaches. Under the American ‘substituted judgment’ test, as articulated in Cruzan,31 it is necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. This was contrasted with the principle of the ‘best interests of the patient’ laid down by the UK House of Lords in Bland.32 The Court cited Lord Goff of Chievely in Bland as authority for the proposition that the crux of the test was not whether it was in the best interests of the patient that she should die, but whether it is in her best interests that her life should be prolonged by the continuance of medical treatment or care.33 The Court eschewed the ‘substituted judgment’ test in Aruna, by ‘differentiating’ Cruzan on the basis that there was no statute in India comparable to the one in Missouri that mandated ‘clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn’.34 In any case, it may be submitted that the Cruzan test would be singularly unhelpful in Aruna, as the Court simply had no barometer to gauge what her views on the issue would have been. She had been in PVS for 38 years, and there did not appear to be any indication that she had ever reflected on this issue. Her family and relatives had abandoned her, and had even refused to attend the proceedings in Court.35 There also appears to have been some concern on the Court's part36 about maintaining a degree of objectivity in the decision-making process, by insulating it to a certain extent from unscrupulous friends and relatives who might stand to gain from the patient's death. In such a scenario, the ‘best interests test’ was probably seen as a safer bet. The responsibility for determining what course was in the patient's best interests was apportioned to the Court, as parens patriae; however, the wishes of close relatives and the next friend, as well as the opinion of medical practitioners were to be given ‘due weight’.37 C. The Active/Passive Dichotomy The Court based the crux of its decision on the much-vaunted distinction between ‘active’ and ‘passive’ euthanasia. This distinction is often couched in terms of a dichotomy between ‘killing’ and ‘letting die’, which stipulates that it is morally wrong to intentionally take a life but permissible to allow the inevitable to happen by withdrawing or withholding treatment.38 Thus, active euthanasia was deemed illegal and a crime in India, punishable as murder under section 302 of the Indian Penal Code, 1860 (IPC); or at the very least as culpable homicide not amounting under section 304 of the IPC.39 On the other hand, passively permitting nature to take its course by withdrawing life support was an ‘omission’,40 and hence not a crime. The moral validity of the active-passive distinction, as also the exculpation of ‘omissions’, has been severely criticised in academic circles.41 As Jackson points out,42 this distinction can produce insidious results, by ensuring that only certain types of death – namely those achieved by suffocation, dehydration, starvation, and infection, through the withdrawal or withholding of, respectively, ventilation, ANH and antibiotics—can lawfully be brought about. Furthermore, it prohibits doctors from acting to achieve that end quickly, and more humanely, by the administration of a single lethal injection. Lord Browne-Wilkinson lamented this paradox in Bland in the following words: How can it be lawful to allow a patient to die slowly, though painlessly, over a period of weeks from lack of food but unlawful to produce his immediate death by a lethal injection, thereby saving his family from yet another ordeal to add to the tragedy that has already struck them? I find it difficult to find a moral answer to that question.43 In Aruna, the Court made precious little attempt to engage with the fallacious moral contours of the active–passive distinction. There are thus strong grounds to believe that the active–passive distinction is not grounded so much in morality as in ‘reasons of policy’, to borrow from Lord Goff of Chievely's judgment in Bland.44 In Aruna, concern for the actor's culpability under the IPC as the cause of death appears to be the animating force for adopting the active–passive distinction. A supplementary factor may be the Court's desire to avoid accusations of overstepping its boundaries, and relegating a volatile matter entailing a positive act designed to kill, to the popularly elected Legislature's domain. Thus, the Court stated the law on the subject to be as follows (until such time as Parliament passes a law on the subject):45 Nonetheless, despite numerous paeans sung to the patient's best interests, when the Court finally delivered its judgment regarding Aruna's individual case,47 it appeared to yield entirely to the wishes of the Hospital staff, which had been tending to her for the past 38 years. Since the staff had grown attached to Aruna and were happy to continue taking care of her, they wanted her to be allowed to live. The Court merely acquiesced to their arguably well-intentioned demands, without considering whether the continued treatment was in fact going to provide any concrete benefit to Aruna. For obvious reasons, according such latitude to the wishes of caregivers or guardians can have dangerous repercussions in cases where caring for the patient is seen as personally or financially burdensome. (i) 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 in the best interest of the patient. (ii) 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 Court46 concerned. III. WHICH WAY FORWARD? In what follows, I attempt to identify certain socio-economic concerns that must necessarily be factored into any discourse on euthanasia in India. Failure to do so would engender a debate, and possibly legislation, that is both ‘incomplete’ and ‘elitist’.48 An individual in traditional Indian society is deeply rooted in the family and community, and in the philosophical sense, in the country, humanity, and the cosmos. In general, the family is the most crucial unit through which this sense of connectedness is mediated.49 Thus, the pivotal role of the family in decision-making processes involving healthcare must be recognised.50 Limiting an individual within the strict confines of ego-centric rights will thus be a narrow-minded approach that is not attuned to the matrix of relationships in which the individual is embedded.51 Advance directives being virtually non-existent in India, the family becomes the locus of the decision-making process, more so when the patient is incompetent.52 Social commentators contend that in many cases, euthanasia is not just about a patient's dignity, but is also a financial issue, and families may be compelled to ‘choose’ the death of their loved ones because of financial constraints.53 In the absence of adequate medical insurance, specialised treatments like ventilator support, kidney dialysis, and expensive lifesaving drugs administered in private hospitals can turn middle-class families into virtual paupers. Poorly equipped government hospitals simply do not have enough life-support machines compared to the number of patients who need them.54 The stark truth is that economic cost of treatment is likely to be the most pressing consideration determining the decision of continuation/withdrawal of life-sustaining treatment in India.55 This also leads to the inevitable possibility of a comatose patient's family and relatives potentially exploiting the euthanasia law to benefit from a premature death, by way of inheritance, etc.56 Soon after the Aruna judgment was rendered, the case of two impoverished brothers inflicted with muscular dystrophy hit the headlines.57 Their parents cannot afford to get them treated, nor can they bear to see the pain and discomfort their partially paralysed children are suffering. They are now contending that if the State will not permit them to seek euthanasia for their children, it must finance the costs of the medical treatment. These are unsavoury yet indispensable questions that demand a considered solution: if a patient or her family simply cannot pay for medical treatment, can they not demand free or subsidised medical treatment in lieu of their request for mercy-killing being granted? This case also exemplifies the somewhat futile nature of the debate in a country where medical treatment, let alone palliative or hospice care, is inaccessible to a wide segment of the populace.58 Given the enormous scarcity of resources,59 some may also proffer the argument that the money spent in keeping patients artificially alive would be more optimally expended on treating cases in which hope of recovery still exists. Many commentators have pointed out that the level of treatment and care received by Aruna is the rare exception, not the rule.60 Most hospitals are compelled to turn such patients away.61 In fact, even in Aruna's case, the Bombay Municipal Corporation tried to shift Aruna outside the Hospital in order to free the bed she has been occupying; however, this was met with furious protests from the nursing staff.62 Nonetheless, it must be emphasised here that a blanket prohibition on euthanasia is not feasible in India either. It is an open secret that various forms of mercy-killing are widely prevalent.63 A case that elicited considerable media attention was that of 59-year-old Neena Bonarji, an international bridge player who had been suffering from progressive lung disease for three years. She had instructed her daughter to switch off the ventilator when she slipped to 100 per cent supplementary support. Her daughter openly acknowledges that she carried out her mother's wishes, and within an hour, Bonarji passed away.64 As Roger Magnusson's study of the ‘euthanasia underground’65 reveals, covert euthanasia spawns an all-pervasive ‘culture of deception’, which encompasses the methods used to procure drugs, the planning of the death itself, and the disposal of the body and associated paperwork. Such an atmosphere renders the vulnerable patient completely bereft of any protective checks and balances. Regulation and augmentation of medical services, rather than empty rhetoric, will need to be the new mantra. 1 See Mahatma Gandhi, ‘Speech at Prayer Meeting’ (15 January 1948) accessed 15 March 2011. 2 See eg PL Vincent, ‘Faiths Take Nuanced View’ The Telegraph (Calcutta, 8 March 2011) accessed 15 June 2011. 3 Constitution of India 1950, Art 21. This provision guarantees that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. 4 See generally the arguments of the Petitioner in CA Thomas Master v Union of India 2000 Cri LJ 3729 (Kerala High Court). 5 Interestingly, votaries of a ‘right to die’ are also able to cite several religious sources and practices that countenance a volitional end to life, such as the Hindu practice of Prayopavesa (religious self-willed death through fasting), and the Jain tradition of Santhara (self-starvation). 6 Aruna Ramchandra Shanbaug v Union of India MANU/SC/0176/2011 (Supreme Court of India). 7 ‘Mixed Reactions to Supreme Court's Refusal for Euthanasia for Shanbaug’ The Times of India (Mumbai, 9 March 2011) accessed 15 June 2011. 8 DA Wainey, ‘Active Voluntary Euthanasia: The Ultimate Act of Care for the Dying’ (1989) 37 Cleveland State L Rev 645, 651. 9 Indian Penal Code 1860 (IPC), s 306 provides that if any person commits suicide, then whoever abets the commission of such suicide, shall be punished with imprisonment for up to ten years, and shall also be liable to fine. S 309 of the IPC further penalises any person who attempts to commit suicide and does any act towards the commission of such offence. 10 P Rathinam v Union of India AIR 1994 SC 1844 (Supreme Court of India). 11 ibid [31]. 12 ibid. 13 ibid [35]. 14 Gian Kaur v State of Punjab AIR 1996 SC 1257 (Supreme Court of India). 15 ibid [22]. 16 ibid. 17 ibid [25]. 18 Constitution of India 1950, Part III. This Part contains the Fundamental Rights guaranteed by the Indian Constitution. 19 Airedale NHS Trust v Bland [1993] AC 789 (HL). 20 Brain death was defined to mean a state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations. See n 6 [9]. 21 Patients in a coma were defined as having undergone a complete failure of the arousal system with no spontaneous eye opening, and were unable to be awakened by application of vigorous sensory stimulation. See ibid [9]. 22 ibid. 23 ibid. 24 ibid [4]. 25 ibid [2]. 26 ibid [106]. Neuro-reductionism has been challenged in recent times, and it has been cogently argued that the mind emerges from, and is shaped by, interactions among the brain, body, and environment. See W Glannon, ‘Our Brains Are Not Us’ (2009) 23 Bioethics 321. 27 It is now being argued that a single definition of death in the presence of medical intervention is impossible and perhaps undesirable. See JJW Herring and PL Chau, ‘The Meaning of Death’ in B Brooks-Gordon, F Ebtehaj, M Johnson and M Richards (eds), Death Rites and Rights (Hart Publishing 2007). 28 Uniform Determination of Death Act, 1980 (USA), s 1. 29 (n 6) [117]. 30 ibid [53]. 31 Cruzan v Director, MDH 497 US 261 (1990) (Supreme Court of the United States). 32 n 19. 33 n 6 [69]. 34 ibid [96]. 35 N Goswami, ‘I don't want to see her but I want her to live – sister’ (3 December 2011) accessed 20 June 2011. 36 n 6 [127]. 37 ibid [77]. 38 SG Potts, ‘Looking for the Exit Door: Killing and Caring in Modern Medicine’ (1988) 25 Houston L Rev 493, 500. 39 n 6 [41]. 40 ibid [28]. 41 See eg J Coggon, ‘On Acts, Omissions and Responsibility’ (2008) 34 Medical Ethics 576. 42 E Jackon, ‘Secularism, Sanctity and the Wrongness of Killing’ (2008) 3 Biosocieties 125. 43 (n 19) 885. 44 ibid 866. 45 ibid [126]. 46 Constitution of India 1950, Art 226 provides that every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. 47 See n 6 [126]. See also J Kothari, ‘Who Decides’ The Hindu (Chennai, 20 March 2011) accessed 19 June 2011. 48 S Nagral, ‘Euthanasia: Cost Factor is a Worry’ The Times of India (Mumbai, 2011) accessed 19 June 2011. 49 S Chattopadhyay and A Simon, ‘East meets West: Cross-cultural Perspective In End-Of-Life Decision Making from Indian and German Viewpoints’ (2008) 11 Medicine Health Care and Philosophy 165. 50 See eg O Deshpande, MR Reid and AS Rao, ‘Attitudes of Asian-Indian Hindus Toward End-of-Life Care’ (2005) 53 J Am Geriatr Soc 131. 51 (n 50) 170. 52 ibid 171. 53 ‘Euthanasia Case Sparks Public Debate in India’ (4 May 2011) accessed 19 June 2011. 54 S Vasudev, ‘The Last Right’ India Today (Mumbai, 15 April 2002) accessed 15 June 2011. 55 (n 50) 171. 56 S Shrivastava, ‘Voluntary Euthanasia: Suicide and Mercy Killing A Global Battle Of Law’ (17 December 2007) accessed 15 June 2011. 57 ‘No to Euthanasia, Parents Now Seek Help for Kids’ (19 March 2011) accessed 17 June 2011. 58 P Prakash, ‘For Dignity in Death’ The Hindu (Chennai, 19 March 2011) accessed 20 March 2011. 59 See generally M Magnier, ‘India's Supreme Court lays out Euthanasia Guidelines’ Montreal Gazette (Montreal, 9 March 2011) accessed 15 June 2011. 60 Mahesh Vijapurkar, ‘Why Talk of Euthanasia is Pointless in India’ (17 March 2011) accessed 19 June 2011. 61 n 59. 62 ‘Aruna Shanbaug: Timeline’ The Times of India (Mumbai, 8 March 2011) accessed 15 June 2011. 63 SP Nayak, ‘Legalise Mercy Killing, Law Commission Tells Government’ (4 July 2008) accessed 19 June 2011. 64 n 54. 65 R Magnusson, ‘“Underground Euthanasia” and the Harm Minimization Debate’ (2004) 32 JLME 486. © The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com TI - INDIA AND EUTHANASIA: THE POIGNANT CASE OF ARUNA SHANBAUG JF - Medical Law Review DO - 10.1093/medlaw/fwr028 DA - 2011-10-01 UR - https://www.deepdyve.com/lp/oxford-university-press/india-and-euthanasia-the-poignant-case-of-aruna-shanbaug-m6XDzvaJLc SP - 646 EP - 656 VL - 19 IS - 4 DP - DeepDyve ER -