Introduction
The topic of euthanasia has contributed to the debate about accepting such practices in the modern world of medicine among all countries round the globe. The case of Aruna Shanbaug deals with the same controversy.
The present case came before the supreme court as a writ petition under Article 32 of the Indian constitution, which has been filed by Ms. Pinki Virani who claims to be the next friend of Ms. Aruna Shanbaug.
Through earlier judgments courts have come to the conclusion that Right to Life as under Article 21 does not include ‘right to die’. Though, the petition was dismissed in the present case, the court discussed the matter keeping in mind the gravity of the particular issue.
Background
Aruna shanbaug worked as a staff nurse in the KEM hospital, Mumbai. On 27th November, 1973, a dreadful incident happened to her, changing her life forever.
Sohan lal, sweeper in the same hospital attacked her, choking her with a dog chain, and went on to sodomise her on finding that she was menstruating.
On being choked with the dog chain, the blood and oxygen supply to the brain was cut off for a considerable period of time, leading to an irreversible brain damage. And she has been in the vegetative state ever since, taken care by the nurses and hospital staff of KEM hospital.
Ms. Pinki Virani filed the petition for the discontinuance of artificial feeding, end her sufferings and let her die peacefully.
ANALYSIS
According to the writ petition filed by Ms. Pinki Virani, Aruna shanbaug has been in vegetative state ever since the tragic incident took place and that her brain is virtually dead. And therefore prays that the court may grant an end to her sufferings.
The counter affidavit of Dr. Amar Ramaji Pazare, Professor and Head of the said hospital, stated slight variance in Aruna Shanbuag’s condition. On account of such variance in allegations, the court appointed three doctors, namely; Dr. J.V. Divatia, Dr. Roop Gursahani and Dr. Nilesh Shah, in order to observe and examine her and prepare a report that to be submitted to the court. The doctors studied Aruna Shanbaug’s every body movement as well as her body’s response to the surroundings. And how the hospital staff has been taking care of her and their will to do so as long as her natural death comes. And therefore, the team of doctors were of the opinion that the present case does not require the need for euthanasia.
Coming to the legal issues of this case. Euthanasia is mainly categorized into two categories; active and passive euthanasia
Active euthanasia involves the use of lethal substances or forces to kill a person e.g. sodium pentothal which causes instantaneous and painless death.
While on the other hand, Passive euthanasia involves the discontinuance of medical treatment which are required for continuing the life of patient. Further classification of euthanasia is voluntary euthanasia and non voluntary euthanasia. The only point of differentiation between the two is of consent. In Voluntary euthanasia, consent is taken from the patient, whereas non voluntary euthanasia is where the consent cannot be taken either because the patient is in coma, or is otherwise unable to give consent. The case of Aruna Shanbaug deals with passive non-voluntary euthanasia. In the case of P. Rathinam v. Union of India, it was held that, the right to life as per Article 21 includes the right to die to as well. The same would have been in favour of the petition but however in the case of Gian Kaur v. State of Punjab, the court had overruled the judgment of P. Rathinam v Union of India.
case. However, the court opined that, in cases where there is a terminally ill patient or is in permanent vegetative state (PVS), in such a case right to die is not termination of life prematurely but accelerating the process of death which has already commenced.
The present case referred to previous judgments and views and legislations of several foreign countries regarding euthanasia.
NETHERLAND
1) As per the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002, euthanasia and physician assisted suicide is not a criminal offence under very specific circumstance.
2) The "Postma case" of 1973, contributed to the legal debate about euthanasia in Netherlands. In which a physician aided the death of her mother because of repeated explicit requests for euthanasia.
Switzerland:
• Switzerland holds an odd view on assisted suicide, considering it legal and it can be performed by non-physicians. On the other hand, euthanasia is illegal.
USA:
Active Euthanasia is illegal in all states in U.S.A., but in states of Oregon, Washington and Montana, physician assisted suicide is legal.
Belgium being the second country in Europe to legalise euthanasia after Netherlands while On countries like Spain, UK, neither euthanasia nor physician assisted suicide is legal.
The court in its judgment mentioned that Ms Pinki Virani does not have the locus standi to file the petition on behalf of Aruna Shanbaug since it is the nursing staff that has taken care of her for 37 years, and the right to take decision on behalf of Aruna Shanbaug was vested with the hospital and its management and not Ms. Pinki Virani.
The court mentioned that the deep agony of the hospital staff is also to be taken into consideration who have looked after her and are willing to do so in the future and may not appreciate the withdrawal of life support.
In order to deter the unfortunate incidents of this technique, the High Court has been vested with the power to decide whether to grant approval for withdrawal of life support or not.
Under a specified set of conditions, passive euthanasia has been allowed by the Supreme court, provided the procedure prescribed is adopted by the High Court.
The Chief Justice of the High Court shall constitute a Bench of at least two Judges, immediately an application for passive euthanasia is filed, who should decide to grant approval or not.
Before that, the Bench should seek the opinion of a committee of three reputed doctors which are to be nominated by the Bench after the consultation of such medical authorities/medical practitioners as it may deem fit. Simultaneous to appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives of the committee to them as soon as it is available. After hearing them, the High Court Bench should give its final judgment. The above procedure should be followed all over India until Parliament makes legislation on this matter.
Conclusion
Concluding it, the petition gave rise to a serious issue which had to be discussed. In order to do so the court did not blindly agree to whatsoever mentioned in he petition and therefore appointed a team of doctors to look into the matter and to examine Aruna Shanbaug, which clearly shows the court’s consistency.
The court referred to previous case judgments to prove that there is no need for withdrawal of life support deemed necessary for the continuation of life of Aruna Shanbaug. Along with that terms such as vegetative state, beneficiary, surrogate, brain death was explained with the help of case laws and keeping in mind the situation of Aruna Shanbaug.
Though the present petition was dismissed on the ground that Ms. Pinki Virani does not have any locus standi in the present situation and the hospital staff which has taken care of her for 37 years will be considered as the ‘next friend’ of Aruna Shanbaug and gave them the option to file an application if they want to.
As well as carefully laid down a procedure need to be followed by the High Court in case any such issue comes before it in the future.
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