A constitution bench of the Supreme Court has held as permissible “passive euthanasia” and “living will”. In 2011, a two-judge bench of the Supreme Court had discussed passive euthanasia in the case of Aruna Shanbaug.

Aruna Ramachandra Shanbaug breathed her last in May 2015, after remaining in a permanent vegetative state (PVS) for over 40 years. She had been admitted at Mumbai’s King Edward Memorial Hospital (KEM) for this period, where the doctors and nursing staff took exemplary care of her.

Ever since, her name has become synonymous with the debate over the controversial issue of euthanasia (mercy killing). There was no law in India that allowed euthanasia and Aruna’s case prompted the Supreme Court to examine the issue in detail when one Pinki Virani filed a writ petition in the court with the prayer to stop feeding Aruna and let her die peacefully.

The court passed a historic judgment in March 2011 allowing passive euthanasia (with guidelines). The judgment is a masterpiece to understand the various facets of this controversial issue and also to understand the medical terminology associated with such patients. Here is an attempt to summarise that order.

The incident in 1973

Aruna was a staff nurse working at KEM. On the evening of November 27, 1973, she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her with it. He tried to rape her but finding that she was menstruating, sodomised her. To immobilise her during this act he twisted the chain around her neck. The next day, on November 28, at 7.45 am, a cleaner found her lying unconscious on the floor with blood all over her.

It is alleged that due to strangulation by the dog chain, the supply of oxygen to her brain stopped and it got irreparably damaged, pushing her into a permanent vegetative state.

Her close relatives and her fiancée abandoned her after a few years. Since then, it was the staff of the hospital that took care of her. The fact that she did not develop a single bed-sore though remaining on the bed for such a long time was a testimony to their service.

Writ petition in Supreme Court

In 2009, Virani of Mumbai filed a writ petition, claiming to be Aruna’s “next friend”. (In legal parlance, a next friend is a person who represents another person who is under disability and unable to decide for himself/herself and who has no legal guardian).

In her petition, she said that Aruna couldn’t be said to be a living person and it was only on account of mashed food that was put into her mouth that there was a facade of life totally devoid of any human element. She also said that there is no possibility of any improvement in her condition and her body lies on the bed in the KEM hospital, and this has been the position for the last 36 years. She prayed that the KEM authorities be directed to stop feeding Aruna, and let her die peacefully.

It is to be noted that the court accepted this petition under Article 32 of the Constitution. This is unusual because for any case to be accepted under the article, the petitioner has to show violation of fundamental right. The court said that in view of the importance of the issues involved, they decided to go deeper into the merits of the case.

The court also issued a notice to the Dean of KEM hospital. Dr Amar Ramaji Pazare, professor and head of the hospital, stated in his submission that Aruna accepts food in normal course and responds by facial expressions. He also said that Aruna responds to commands intermittently by making sounds. His submission was at variance with the submission of the petitioner. Hence, the court decided to appoint a three-member committee comprising of well-known doctors to look into Aruna’s case history, examine her and then submit a report.

The doctors’ committee

The doctors’ panel conducted a detailed investigation by going through the case and conducting fresh tests. They concluded that Aruna had developed non-progressive but irreversible brain damage. They said most authorities consider a period exceeding four weeks in this condition as confirming irreversibility. They also said Aruna could perhaps be the longest survivor in this situation.

According to the panel, she met most of the criteria for being in PVS. After being asked by the court to explain the medical terminology in simple words, the committee described four different situations and concluded that Aruna’s condition matches that of PVS. Those four conditions were:

The counsel for Virani referred to the 241st report of the Law Commission of India, 2006, on “euthanasia”. The Attorney General of India, on the other hand, stated that the report of the law commission had not been accepted by the Government of India. He further submitted that Indian society is emotional and care-oriented and that people do not send parents to old-age homes, as in the west. He stated that there was a great danger in permitting euthanasia because relatives of a person may conspire with doctors and get him killed to inherit property. He further stated that in the future there may be a cure for the medical state. The government was against the idea of euthanasia, whether active or passive.

The court was primarily considering this issue to decide between “active vs passive euthanasia”. The court also held that it was the KEM staff who had been caring for Aruna day and night for so many years, and who could really be her next friends, and not Pinky Virani who only visited her on a few occasions and wrote a book on her.

Active vs passive euthanasia

The court held that active euthanasia is a crime all over the world except where permitted by legislation. In India, active euthanasia is illegal. Physician-assisted suicide is a crime under section 306 of the IPC (abetment to suicide).

Active euthanasia is taking specific steps to cause the patient’s death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in the sleep.

The court also observed the difference between euthanasia and physician-assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third-party administers it, while in physician-assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries, physician-assisted dying is legal while the physician administering it is illegal.

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.

The court said that in passive euthanasia, doctors are not actively killing anyone; they are simply not saving them. It said that while we usually applaud someone who saves another person’s life, we do not normally condemn someone for failing to do so.

International experience

The court relied on euthanasia laws in various countries to understand the international experience.

The judgment

For the judgment, the court relied heavily on the Airedale case decided by the House of Lords in the UK where the court allowed passive euthanasia only after the approval of a high court.

The court also said that Aruna is not brain dead, but at the same time there is little possibility of her coming out of the PVS. While allowing passive euthanasia, the court said it is for the KEM hospital staff to take the decision on passive euthanasia for Aruna. The hospital staff clearly expressed the wish that Aruna should be allowed to live. Hence, she was allowed to live till her death by natural means.

While allowing passive euthanasia, the court laid down important guidelines to prevent any misuse of the provision and ordered that the guidelines be followed in every such case till legislation is made by the government. The guidelines were:

• Any petition for passive euthanasia has to be filed with the relevant high court. The Chief Justice of the High Court should constitute a bench of at least two judges who should decide to grant approval or not.
• Before taking a decision, the bench should seek the opinion of a committee of three reputed doctors to be nominated by the bench. Preferably, one of the three doctors should be a neurologist; one should be a psychiatrist, and the third a physician.
• The bench should issue notice to the state and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence, the next friend.
• The court should supply a copy of the report of the doctor’s committee to them as soon as it is available.
• After hearing all parties, the high court bench should give its verdict at the earliest.

The court had special words of appreciation for the KEM staff for their dedication to Aruna all these years.

This article has been re-published with the permission of Factly. Visit the website here.