Refusing mercy killing of Aruna Shanbaug, lying in a vegetative state for 37 years in a Mumbai hospital, a two- judge bench of justices Markandeya Katju and Gyan Sudha Mishra, laid a set of tough guidelines under which passive euthanasia can be legalised through high court monitored mechanism.
The apex court while framing the guidelines for passive euthanasia asserted that it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue.
The bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become “anachronistic though it has become Constitutionally valid.”
“A person attempts suicide in a depression, and hence he needs help, rather than punishment,” Justice Katju writing the judgement said.
The apex court said though there is no statutory provision for withdrawing life support system from a person in permanently vegetative state, it was of the view that “passive euthanasia” could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings.
“We agree with senior counsel T R Andhyarujina (who assisted the court in the matter) that passive euthanasia should be permitted in our country in certain situations, and we disagree with Attorney General (G E Vahanvati) that it should never be permitted,” said the bench of justices Markandey Katju and Gyan Sudha Mishra dismissed the plea filed on behalf of KEM hospital nurse Aruna Ramachandra Shanbaug, saying that while active euthanasia (mercy killing) was illegal, yet “passive euthanasia” can be permissible in exceptional circumstances.
While dismissing writer Pinky Virani’s plea for subjecting to mercy killing of the KEM Hospital nurse who was sexually assaulted by a ward boy, the apex court cast the responsibility of taking a call on passive euthanasia on high courts, if the plea is made by close relatives or friends who have strongly opposed such a step.
The bench, in its 141-page ruling, said in the case of Aruna, the plea for her mercy killing could be permitted if the Mumbai King Edward Hospital makes it to the Bombay High Court on her behalf and the high court accepts it.
“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 added.
“It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient,” and should be approved by the high court, it said.
In the case of nurse Aruna “it is for the KEM hospital staff to take that decision,” and not writer Pinky Virani, the bench said , adding that “the hospital staff have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani.”
“Hence it is for the KEM hospital staff to take that decision. And the KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live,” the bench said, rejecting the plea for Aruna’s mercy killing at present.
“Assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support,” the bench said.
Laying down the law on the issue, the bench added that “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 court concerned.”
“In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient,” it said.
“In our opinion, if we leave it solely to the patient’s relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient,” it said.
The bench held that it’s only the high court which has the power under the Article 226 of the Constitution to decide the plea for mercy killings.
“In our opinion, Article 226 gives abundant power to the high court to pass suitable orders on the application filed by the near relatives or next friend or the doctors or hospital staff praying for permission to withdraw the life support to an incompetent person like Aruna,” the bench said.
While holding high courts to be constitutionally empowered to take calls on pleas for euthanasia, the bench also laid down a detailed procedure for them on how to deal with such pleas.
It said the chief justices of the high courts, on receipt of an euthanasia plea, would forthwith constitute a bench to decide it.
The bench in turn would appoint a committee of at least three renowned doctors to advise them on the matter.
The bench said the high court should also seek the stands of various stakeholders to the plea including the relatives, next friends state etc to examine it and decide the matter as expeditiously as possible.
“The high court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient,” the bench said, adding that the decision should be given with “specific reasons in accordance with the principle of ‘best interest of the patient’ laid down by the House of Lords in Airedale’s case.”
Govt may refer euthanasia issue to Law Commission
With the Supreme Court today rejecting a plea to allow active euthanasia (mercy killing) to Aruna Shanbaugh, a victim of sexual assault, and setting out guidelines for passive euthanasia, the government may refer the matter to the Law Commission to seek its views on the complex subject.
Law Ministry sources said here that as the apex court has allowed passive euthanasia of withdrawing life support to patients in permanently vegetative state but rejected active euthanasia of ending life through administration of lethal substances, government may ask the Law Commission to study the issue and come out with a report.
Though the Law Commission, in a report submitted in 2006, had favoured mercy killing for terminally ill patients, the Law Ministry thinks a fresh look by the panel will help clarify the issue after today’s order by the SC asking the government to bring a law on euthanasia.
The Law Commission reports are not binding on the government but they help various ministries firm up their views on complex legal issues such as this one.
The apex court while framing the guidelines for passive euthanasia said it would now become the law of the land until Parliament enacts a suitable legislation to deal with the issue.
The two-member bench also asked Parliament to delete Section 309 IPC (attempt to suicide) as it has become “anachronistic though it has become Constitutionally valid.”
In its report submitted to the government in 2008, the Law Commission too had recomended that “the offence of attempt to commit suicide under section 309 needs to be ommitted from the Indian Penal Code.”
While the issue of euthanasia is the subject of the Health Ministry, changes in the provisions of the IPC are dealt with by the Ministry of Home Affairs.
The apex court said though there is no statutory provision for withdrawing life support system from a person in permanently vegetative state, it was of the view that “passive euthanasia” could be permissible in certain cases for which it laid down guidelines and cast the responsibility on high courts to take decisions on pleas for mercy killings.
The SC bench agreed with senior counsel T R Andhyarujina, who assisted the court in the matter, that passive euthanasia should be permitted in India in certain situations.
Earlier today, government said a serious debate was needed on the issue of euthanasia as there were no laws at present on it in the country.
“…They (Supreme Court) are right that without a law, you cannot resort to this kind of a decision with a judicial order,” Law Minister M Veerappa Moily said.
Moily said the Right to Life is a right vested with a person.
“Therefore, there is a need for a serious debate on the matter. It has to be examined, it has to be debated upon,” he said. DD