Shanbaug Vs Union of India and Others
J U D G M E N T
Markandey Katju, J.
aarzoo mein marne ki Maut aati hai par nahin aati" -- Mirza Ghalib
Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney
General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina,
learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia,
learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar,
learned counsel for the State of Maharashtra.
is one of the most perplexing issues which the courts and legislatures all over
the world are facing today. This Court, in this case, is facing the same issue,
and we feel like a ship in an uncharted sea, seeking some guidance by the light
thrown by the legislations and judicial pronouncements of foreign countries, as
well as the submissions of learned counsels before us. The case before us is a
writ petition under Article 32 of the Constitution, and has been filed on behalf
of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai,
claiming to be a next friend.
is stated in the writ petition 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 on 28th November,
1973 at 7.45 a.m. 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. It is
alleged that the Neurologist in the Hospital found that she had plantars' extensor,
which indicates damage to the cortex or some other part of the brain. She also
had brain stem contusion injury with associated cervical cord injury.
It is alleged at page
11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra
Shanbaug is about 60 years of age. She is featherweight, and her brittle bones
could break if her hand or leg are awkwardly caught, even accidentally, under her
lighter body. She has stopped menstruating and her skin is now like papier
mache' stretched over a skeleton. She is prone to bed sores. Her wrists are
twisted inwards. Her teeth had decayed causing her immense pain. She can only
be given mashed food, on which she survives. It is alleged that Aruna
Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually
a dead person and has no state of awareness, and her brain is virtually dead.
She can neither see, nor hear anything nor can she express herself or
communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not
able to chew or taste any food. She is not even aware that food has been put in
She is not able to
swallow any liquid food, which shows that the food goes down on its own and not
because of any effort on her part. The process of digestion goes on in this way
as the mashed food passes through her system. However, Aruna is virtually a skeleton.
Her excreta and the urine is discharged on the bed itself. Once in a while she
is cleaned up but in a short 4 while again she goes back into the same
sub-human condition. Judged by any parameter, Aruna cannot be said to be a
living person and it is only on account of mashed food which is put into her
mouth that there is a facade of life which is totally devoid of any human
element. It is 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 is that the respondents be directed to stop feeding Aruna, and
let her die peacefully.
could have dismissed this petition on the short ground that under Article 32 of
the Constitution of India (unlike Article 226) the petitioner has to prove violation
of a fundamental right, and it has been held by the Constitution Bench decision
of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide
paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the
Constitution does not include the right to die. Hence the petitioner has not shown
violation of any of her fundamental rights. However, in view of the importance of
the issues involved we decided to go deeper into the merits of the case.
had been issued by this Court on 16.12.2009 to all the respondents in this
petition. A counter affidavit was earlier filed on behalf of the respondent
nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr.
Amar Ramaji Pazare, Professor and Head in the said hospital, stating in
paragraph 6 that Aruna accepts the food in normal course and responds by facial
expressions. She responds to commands intermittently by making sounds. She makes
sounds when she has to pass stool and urine which the nursing staff identifies
and attends to by leading her to the toilet. Thus, there was some variance
between the allegations in the writ petition and the counter affidavit of Dr.
there was some variance in the allegation in the writ petition and the counter
affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team
of three very distinguished doctors of Mumbai to examine Aruna Shanbaug
thoroughly and submit a report about her physical and mental condition. These
three doctors were :
(1) Dr. J. V.
Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain
at Tata Memorial Hospital, Mumbai;
(2) Dr. Roop
Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and
(3) Dr. Nilesh Shah,
Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal
Corporation Medical College and General Hospital.
pursuance of our order dated 24th January, 2011, the team of three doctors
above mentioned examined Aruna Shanbuag in KEM Hospital and has submitted us
the following report: " Report of Examination of Ms. Aruna Ramachandra
Shanbaug Jointly prepared and signed by 1. Dr. J.V. Divatia (Professor and
Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial
Hospital, Mumbai) 2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja
Hospital, Mumbai) 3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry
at Lokmanya Tilak Municipal Corporation Medical College and General Hospital).
As per the request of
Hon. Justice Katju and Hon. Justice Mishra of the Supreme Court of India, Ms.
Aruna Ramachandra Shanbaug, a 60-year-old female patient was examined on 28th January
2011, morning and 3rd February 2011, in the side-room of ward-4, of the K. E. M.
Hospital by the team of doctors viz. Dr. J.V. Divatia (Professor and Head,
Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital,
Mumbai), Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
and Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital). This committee was
set up because the Court found some variance between the allegations in the
writ petition filed by Ms. Pinki Virani on behalf of Aruna Ramchandras Shanbaug
and the counter affidavit of Dr. Pazare. This team of three doctors was appointed
to examine Aruna Ramachandra Shanbaug thoroughly and give a report to the Court
about her physical and mental condition It was felt by the team of doctors
appointed by the Supreme Court that longitudinal case history and observations of
last 37 years along with findings of examination will give a better, clear and
comprehensive picture of the patient's condition. This report is based on: 1.
The longitudinal case history and observations obtained from the Dean and the
medical and nursing staff of K. E. M. Hospital, Case records (including nursing
records) since January 2010 3. Findings of the physical, neurological and mental
status examinations performed by the panel. Investigations performed during the
course of this assessment (Blood tests, CT head, Electroencephalogram)
II. Medical history
Medical history of Ms.
Aruna Ramachandra Shanbaug was obtained from the Dean, the Principal of the
School of Nursing and the medical and nursing staff of ward-4 who has been
looking after her. 8 It was learnt from the persons mentioned above that
1. Ms. Aruna Ramachandra
Shanbaug was admitted in the hospital after she was assaulted and strangulated
by a sweeper of the hospital on November 27, 1973.
2. Though she
survived, she never fully recovered from the trauma and brain damage resulting from
the assault and strangulation.
3. Since last so many
years she is in the same bed in the side-room of ward-4.
4. The hospital staff
has provided her an excellent nursing care since then which included feeding her
by mouth, bathing her and taking care of her toilet needs. The care was of such
an exceptional nature that she has not developed a single bed-sore or fracture
in spite of her bed-ridden state since 1973.
5. According to the
history from them, though she is not very much aware of herself and her surrounding,
she somehow recognizes the presence of people around her and expresses her like
or dislike by making certain types of vocal sounds and by waving her hands in certain
She appears to be
happy and smiles when she receives her favorite food items like fish and chicken
soup. She accepts feed which she likes but may spit out food which she doesn't like.
She was able to take oral feeds till 16th September 2010, when she developed a febrile
illness, probably malaria. After that, her oral intake reduced and a feeding tube
(Ryle's tube) was passed into her stomach via her nose. Since then she receives
her major feeds by the Ryle's tube, and is only occasionally able to accept the
oral liquids. Malaria has taken a toll in her physical condition but she is
gradually recuperating from it.
6. Occasionally, when
there are many people in the room she makes vocal sounds indicating distress. She
calms down when people move out of her room. She also seems 9 to enjoy the
devotional songs and music which is played in her room and it has calming
effect on her.
7. In an annual
ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra
Shanbaug, and is told that "She was one of us"; "She was a very
nice and efficient staff nurse but due to the mishap she is in this bed-ridden
8. The entire nursing
staff member and other staff members have a very compassionate attitude towards
Ms. Aruna Ramachandra Shanbaug and they all very happily and willingly take
care of her. They all are very proud of their achievement of taking such a good
care of their bed- ridden colleague and feel very strongly that they want to continue
to take care of her in the same manner till she succumbs naturally. They do not
feel that Ms. Aruna Ramachandra Shanbaug is living a painful and miserable life.
She was conscious, unable
to co-operate and appeared to be unaware of her surroundings. Her body was lean
and thin. She appeared neat and clean and lay curled up in the bed with
movements of the left hand and made sounds, especially when many people were
present in the room. She was afebrile, pulse rate was 80/min, regular, and good
volume. Her blood pressure recorded on the nursing charts was normal. Respiratory
rate was 15/min, regular, with no signs of respiratory distress or breathlessness.
There was no pallor, cyanosis, clubbing or icterus. She was edentulous (no
teeth). Skin appeared to be generally in good condition, there were no bed
sores, bruises or evidence of old healed bed sores. There were no skin signs suggestive
of nutritional deficiency or dehydration. Her wrists had developed severe
contractures, and were fixed in acute flexion. Both knees had also developed
contractures (right more than left). A nasogastric feeding tube (Ryles tube) was
in situ. She was wearing diapers. Abdominal, respiratory and cardiovascular examination
When examined she was
conscious with eyes open wakefulness but without any apparent awareness (see Table
for detailed assessment of awareness). From the above examination, she has evidence
of intact auditory, visual, somatic and motor primary neural pathways. However no
definitive evidence for awareness of auditory, visual, somatic and motor
stimuli was observed during our examinations. There was no coherent response to
verbal commands or to calling her name. She did not turn her head to the
direction of sounds or voices.
When roused she made non-specific
unintelligible sounds ("uhhh, ahhh") loudly and continuously but was
generally silent when undisturbed. Menace reflex (blinking in response to hand movements
in front of eyes) was present in both eyes and hemifields but brisker and more consistent
on the left. Pupillary reaction was normal bilaterally. Fundi could not be seen
since she closed her eyes tightly when this was attempted. At rest she seemed to
maintain preferential gaze to the left but otherwise gaze was random and undirected
(roving) though largely conjugate. Facial movements were symmetric. Gag reflex (movement
of the palate in response to insertion of a tongue depressor in the throat) was
present and she does not pool saliva. She could swallow both teaspoonfuls of water
as well as a small quantity of mashed banana.
She licked though not
very completely sugar smeared on her lips, suggesting some tongue control. She had
flexion contractures of all limbs and seemed to be incapable of turning in bed
spontaneously. There was what appeared to be minimal voluntary movement with
the left upper limb (touching her wrist to the eye for instance, perhaps as an attempt
to rub it). When examined/disturbed, she seemed to curl up even further in her
flexed foetal position. Sensory examination was not possible but she did seem to
find passive movement painful in all four limbs and moaned continuously during the
examination. Deep tendon reflexes were difficult to elicit elsewhere but were present
at the ankles. Plantars were withdrawal/extensor. Thus neurologically she
appears to be in a state of intact consciousness without awareness of self/environment.
No cognitive or communication abilities could be discerned. Visual function if
present is severely limited. Motor function is grossly impaired with quadriparesis.
IIIc. Mental Status
General Appearance, Attitude and Behavior : Ms. Aruna Ramachandra Shanbaug was resting
quietly in her bed, apparently listening to the devotional music, when we entered
the room. Though, her body built is lean, she appeared to be well nourished and
there were no signs of malnourishment. She appeared neat and clean. She has developed
contractures at both the wrist joints and knee joints and so lied curled up in the
bed with minimum restricted physical movements. She was conscious but appeared
to be unaware of herself and her surroundings.
As soon as she
realized the presence of some people in her room, she started making repetitive
vocal sounds and moving her hands. This behavior subsided as we left the room.
She did not have any involuntary movements. She did not demonstrate any catatonic,
hostile or violent behavior. Her eyes were wide open and from her behavior it appeared
that she could see and hear us, as when one loudly called her name, she stopped
making vocal sounds and hand movements for a while. She was unable to maintain
sustained eye-to eye contact but when the hand was suddenly taken near her
eyes, she was able to blink well. When an attempt was made to feed her by
mouth, she accepted a spoonful of water, some sugar and mashed banana. She also
licked the sugar and banana paste sticking on her upper lips and swallowed it. Thus,
at times she could cooperate when fed.
2. Mood and affect :
It was difficult to assess
her mood as she was unable to communicate or express her feelings. She appeared
to calm down when she was touched or caressed gently. She did not cry or laugh or
expressed any other emotions verbally or non-verbally during the examination period.
When not disturbed and observed quietly from a distance, she did not appear to
be in severe pain or misery. Only when many people enter her room, she appears
to get a bit disturbed about it.
3. Speech and
She could make repeated
vocal sounds but she could not utter or repeat any comprehensible words or follow
and respond to any of the simple commands (such as "show me your
tongue"). The only way she expressed herself was by making some sounds. She
appeared to have minimal language comprehension or expression.
4. Perception :
She did not appear to
be having any perceptual abnormality like hallucinations or illusions from her behavior.
5. Orientation, memory and intellectual capacity : Formal assessment of orientation
in time, place and person, memory of immediate, recent and remote events and
her intellectual capacity could not be carried out. 6. Insight : As she does
not appear to be fully aware of herself and her surroundings, she is unlikely
to have any insight into her illness.
IV. Reports of
IVa. CT Scan Head
This is contaminated by
movement artefacts. It shows generalized prominence of supratentorial sulci and
ventricles suggestive of generalized cerebral atrophy. Brainstem and cerebellum
seem normal. Ischemic foci are seen in left centrum semi-ovale and right external
capsule. In addition a small left parieto-occipital cortical lesion is also
seen and is probably ischemic.
The dominant feature is
a moderately rhythmic alpha frequency at 8-10 Hz and 20-70 microvolts which is widely
distributed and is equally prominent both anteriorly and posteriorly. It is not
responsive to eye- opening as seen on the video. Beta at 18-25 Hz is also seen
diffusely but more prominently anteriorly. No focal or paroxysmal abnormalities
IVc. Blood Reports of the hemoglobin,
white cell count, liver function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels are unremarkable. (Detailed
report from KEM hospital attached.)
1) From the longitudinal
case history and examination it appears that Ms. Aruna Ramachandra Shanbaug has
developed non-progressive but irreversible brain damage secondary to
hypoxic-ischemic brain injury consistent with the known effects of
strangulation. Most authorities consider a period exceeding 4 weeks in this condition,
especially when due to hypoxic-ischemic injury as confirming irreversibility.
In Ms. Aruna's case, this period has been as long as 37 years, making her perhaps
the longest survivor in this situation. 2) She meets most of the criteria for being
in a permanent vegetative state (PVS). PVS is defined as a clinical condition of
unawareness (Table 1) 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 (Table 2). While she has evidence of intact
auditory, visual, somatic and motor primary neural pathways, no definitive evidence
for awareness of auditory, visual, 15 somatic and motor stimuli was observed during
Her dementia has not
progressed and has remained stable for last many years and it is likely to
remain same over next many years. At present there is no treatment available
for the brain damage she has sustained.
VII a. Table 1.
TO ESTABLISH UNAWARENESS (Wade DT, Johnston C. British Med
1999; 319:841-844) DOMAIN
AWARENESS other movements
loud noise (clap)
noise (rattled steel tumbler and spoon, film songs
head and body movements of 1970s)
commands ("close your eyes", "lift left hand ": in
to obey commands. No specific or reproducible
Marathi and Konkani)
light to eyes present
light to eyes
moving object in front of eyes (bright red torch Tracking movements: present
but inconsistent and poorly rattle)
threat (fingers suddenly moved toward eyes)
but more consistent on left than right
command (English, Marathi: close your eyes)
stimuli to limbs (light prick with Withdrawal, maximal in left upper limb sharp
end of tendon hammer)
stimuli to face
but no co-ordinated response to remove stimulus
sensory stimuli during care (changing position in bed
non specific response presence but no coordinated and feeding) attempt to
assist in process
undirected activities. Goal directed - lifting left hand to left side of face,
apparently to rub her left eye.
undirected without any goal directed activities.
VIIb. Table 2.
mination findings : whether she meets Criteria
/No / Probably)
of self and environment
interaction with others
sustained, reproducible or purposeful voluntary
no sustained, reproducible or purposeful
examination of fundus
Licked sugar off lips
language comprehension or expression
blink to visual threat
but more consistent on left than right
sleep wake cycles
(according to nurses)
autonomic and hypothalamic function
cranial nerve reflexes
and bladder incontinence
examination of fundus
sugar off lips No language comprehension or expression Yes, no comprehension No
blink to visual threat Blinks, but more consistent on left than right Present
sleep wake cycles Yes (according to nurses) Preserved autonomic and
hypothalamic function Yes Preserved cranial nerve reflexes Yes Bowel and
bladder incontinence Yes VIII. References 1. Multi-Society Task Force on PVS.
Medical aspects of the persistent vegetative state. N Engl J Med 1994; 330:
1499-508 2. Wade DT, Johnston C. The permanent vegetative state: practical
guidance on diagnosis and management. Brit Med J 1999; 319:841-
JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and diagnostic
criteria. Neurology 2002;58:349-353 4. Bernat JL. Current controversies in
states of chronic unconsciousness. Neurology 2010;75;S33" 8. On 18th
February, 2011, we then passed the following order : "In the above case
Dr. J.V. Divatia on 17.02.2011 handed over the report of the team of three doctors
whom we had appointed by our order dated 24th January, 2011.
He has also handed
over a CD in this connection. Let the report as well as the CD form part of the
record. On mentioning, the case has been adjourned to be listed on 2nd March,
2011 at the request of learned Attorney General of India, Mr. T.R. Andhyarujina,
learned Senior Advocate, whom we have appointed as amicus curiae in the case as
well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner. We
request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop
Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30
A.M. in the Court, since 17 it is quite possible that we may like to ask them
questions about the report which they have submitted, and in general about
their views in connection with euthanasia. On perusal of the report of the
committee of doctors to us we have noted that there are many technical terms
which have been used therein which a non-medical man would find it difficult to
understand. We, therefore, request the doctors to submit a supplementary report
by the next date of hearing (by e-mailing copy of the same two days before the
next date of hearing) in which the meaning of these technical terms in the report
is also explained.
Government is directed to arrange for the air travel expenses of all the three
doctors as well as their stay in a suitable accommodation at Delhi and also to provide
them necessary conveyance and other facilities they require, so that they can
appear before us on 02.03.2011. An honorarium may also be given to the doctors,
if they so desire, which may be arranged mutually with the learned Attorney
General. The Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who
claims to be the next friend of the petitioner) are directed to intimate the brother(s)/sister(s)
or other close relatives of the petitioner that the case will be listed on 2nd March,
2011 in the Supreme Court and they can put forward their views before the Court,
if they so desire.
Learned counsel for
the petitioner and the Registry of this Court shall communicate a copy of this
Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested
to file an affidavit stating his views regarding the prayer in this writ petition,
and also the condition of the petitioner. Copy of this Order shall be given forthwith
to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina,
learned Senior Advocates. 18 Let the matter be listed as the first item on 2nd March,
2.3.2011, the matter was listed again before us and we first saw the screening
of the CD submitted by the team of doctors along with their report. We had
arranged for the screening of the CD in the Courtroom, so that all present in Court
could see the condition of Aruna Shanbaug. For doing so, we have relied on the
precedent of the Nuremburg trials in which a screening was done in the
Courtroom of some of the Nazi atrocities during the Second World War. We have
heard learned counsel for the parties in great detail. The three doctors
nominated by us are also present in Court.
As requested by us, the
doctors team submitted a supplementary report before us which states : Supplement
To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly
prepared and signed by 1. Dr. J.V. Divatia (Professor and Head, Department of
Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai) 2. Dr.
Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) 3. Dr.
Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital). Mumbai February
26, 2011 19 INDEX Introduction 3 Terminology 4 Glossary of Technical terms 7 Opinion
11 3 Introduction This document is a supplement to the Report of Examination of
Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011. On perusal of the report,
the Hon. Court observed that there were many technical terms which a
non-medical man would find it difficult to understand, and requested us to
submit a supplementary report in which the meaning of these technical terms in the
report is also explained. We have therefore prepared this Supplement to include
a glossary of technical terms used in the earlier Report, and also to clarify some
of the terminology related to brain damage. Finally, we have given our opinion
in the case of Aruna Shanbaug. Terminology
The words coma, brain
death and vegetative state are often used in common language to describe severe
brain damage. However, in medical terminology, these terms have specific meaning
and significance. Brain death 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. Explanation: This is the most severe form of brain damage.
The patient is unconscious, completely unresponsive, has no reflex activity from
centres in the brain, and has no breathing efforts on his own. However the heart
is beating. This patient can only be maintained alive by advanced life support
(breathing machine or ventilator, drugs to maintain blood pressure, etc). These
patients can be legally declared dead (`brain dead') to allow their organs to
be taken for donation. Aruna Shanbaug is clearly not brain dead. Coma Patients in
coma have complete failure of the arousal system with no spontaneous eye opening
and are unable to be awakened by application of vigorous sensory stimulation. 20
Explanation: These patients are unconscious.
They cannot be
awakened even by application of a painful stimulus. They have normal heart beat
and breathing, and do not require advanced life support to preserve life. Aruna
Shanbaug is clearly not in Coma. Vegetative State (VS) The complete absence of
behavioral evidence for self or environmental awareness. There is preserved
capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles.
.i.e. patients are awake, but have no awareness. Explanation: Patients appear
awake. They have normal heart beat and breathing, and do not require advanced life
support to preserve life. They cannot produce a purposeful, co- ordinated, voluntary
response in a sustained manner, although they may have primitive reflexive responses
to light, sound, touch or pain. They cannot understand, communicate, speak, or
They are unaware of
self and environment and have no interaction with others. They cannot voluntarily
control passing of urine or stools. They sleep and awaken. As the centres in
the brain controlling the heart and breathing are intact, there is no threat to
life, and patients can survive for many years with expert nursing care. The
following behaviours may be seen in the vegetative state : Sleep-wake cycles
with eyes closed, then open Patient breathes on her own Spontaneous blinking
and roving eye movements Produce sounds but no words Brief, unsustained visual
pursuit (following an object with her eyes) Grimacing to pain, changing facial
expressions Yawning; chewing jaw movements Swallowing of her own spit Nonpurposeful
limb movements; arching of back Reflex withdrawal from painful stimuli Brief
movements of head or eyes toward sound or movement without apparent
localization or fixation Startles with a loud sound Almost all of these
features consistent with the diagnosis of permanent vegetative state were present
during the medical examination of Aruna Shanbaug. 21 Minimally Conscious State Some
patients with severe alteration in consciousness have neurologic findings that
do not meet criteria for VS. These patients demonstrate some behavioral evidence
of conscious awareness but remain unable to reproduce this behavior consistently.
This condition is referred
to here as the minimally conscious state (MCS). MCS is distinguished from VS by
the partial preservation of conscious awareness. To make the diagnosis of MCS, limited
but clearly discernible evidence of self or environmental awareness must be
demonstrated on a reproducible or sustained basis by one or more of the
following behaviors: 7 Following simple commands. Gestural or verbal yes/no
responses (regardless of accuracy). 7 Intelligible sounds Purposeful behavior, including
movements or emotional behaviors (smiling, crying) that occur in relation to
relevant environmental stimuli and are not due to reflexive activity. Some examples
of qualifying purposeful behavior include: - appropriate smiling or crying in
response to the linguistic or visual content of emotional but not to neutral
topics or stimuli - vocalizations or gestures that occur in direct response to
the linguistic content of questions - reaching for objects that demonstrates a clear
relationship between object location and direction of reach - touching or
holding objects in a manner that accommodates the size and shape of the object -
pursuit eye movement or sustained fixation that occurs in direct response to moving
or salient stimuli None of the above behaviours suggestive of a Minimally Conscious
State were observed during the examination of Aruna Shanbaug. GLOSSARY OF
TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order)
conveyed though expressions and behavior
painful wound on the body caused by having to lie in bed for a long time
both sides (right and left)
injury or mark where the skin has not been broken but is darker in colour,
often as a result of being hit by something
someone who is stiff and not moving or reacting, as if dead
of the globe (cortex) of the brain
or prominence of the nailbed, making base of the nails look thick. This
is often due to longstanding infection inside the lungs.
to ability to understand and process information in the brain
movement (of the eyeball)
with eyes open. By itself the term conscious does not convey any information about
awareness of self and surroundings, or the ability to understand,
communicate, have emotions, etc.
or tendons that have become shortened and taut over a period of time. This causes
deformity and restriction of movements.
specialized X-ray test where images of the brain (or other part of the body)
are obtained in cross-section at different levels. This allows clear
visualization of different parts of the brain
discoloration of the nails, lips or skin. It may be due to low levels of
oxygen in the blood
response of the fleshy part of certain muscles when its tendon is hit lightly
with an examination hammer
in which there is a cognitive defect, i.e. the patient is unable to
understand and process information in the brain
of the electrical activity of the brain
crack or a break in bones
of fundus. Fundus of the eye is the interior surface of the eye, opposite the
lens. It is examined with an instrument called the ophthalmoscope
of the palate in response to insertion of a tongue depressor in the throat
in the absence of stimuli. (e.g.hearing voices which are not there or which are
inaudible to others)
or left part of the field of vision
to reduced oxygen levels in the Blood
discoloration of the skin and eyeballs. This is commonly known as jaundice,
and may be caused by liver disease
of stimuli (seeing a rope as a snake)
of events which have occurred just a few minutes ago
understanding of his or her own Illness
to solve problems. The ability to learn, understand and make judgments or have
opinions that are based on reason
movements over which patient has no control
to restriction or cutting off of the blood flow to any part of the body
and in bad health because of having too little food or too little of the
types of food necessary for good health
in response to hand movements in front of eyes
way one feels at a particular time
in the image seen in the CT scan due to patient movement
given through mouth
about the time, place and person
appearance of the skin. Usually this is due to a low red blood cell count or
low haemo globin level in the blood.
of a limb or part of the body done by the doctor without any effort by the patient
experiences (such as seeing, hearing etc.)
sensory experiences, e.g, seeing things that do not exist, hearing sounds
when there are none
response of the toes when a sharp painful stimulus is applied to the sole of
the foot. The normal response is curling downwards of the toes.
a painful stimulus was applied to the sole of the foot the toes spread out
and there was reflex movement of the leg (withdrawal) or upward curling of
the great toe and other
(extensor). This is an abnormal indicating damage in the pathway in the brain
or to the area in the brain controlling function of the legs.
of the nerves from a part of the body to the area in the brain responsible
for the function of that part
pupillary light reflex controls the diameter of the pupil, in response to the
intensity of light. Greater intensity light causes the pupil to become
smaller (allowing less light in), whereas
Opinion In our view,
the issues in this case (and other similar cases) are:
a person who is in a permanent vegetative state (PVS), should withholding or withdrawal
of life sustaining therapies (many authorities would include placement of an artificial
feeding tube as a life sustaining intervention) be permissible or `not
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?
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?
Shanbaug has been abandoned by her family and is being looked after for the
last 37 years by the staff of KEM Hospital. Who should take decisions on her
behalf? Questions such as these come up at times in the course of medical
practice. We realize that answers to these questions are difficult, and involve
several ethical, legal and social issues. Our opinion is based on medical facts
and on the principles of medical ethics. We hope that the Honourable Court will
provide guidance and clarity in this matter.
Two of the cardinal
principles of medical ethics are Patient Autonomy and Beneficiance.
means the right to self-determination, where the informed patient has a right
to choose the manner of his treatment. To be autonomous the patient should be
competent to make decisions and choices. In the event that he is incompetent to
make choices, his wishes expressed in advance in the form of a Living Will, OR
the wishes of surrogates acting on his behalf ('substituted judgment') are to
be respected. The surrogate is expected to represent what the patient may have
decided had he / she been competent, or to act in the patient's best interest.
It is expected that a surrogate acting in the 25 patient's best interest
follows a course of action because it is best for the patient, and is not influenced
by personal convictions, motives or other considerations.
is acting in what is (or judged to be) in patient's best interest. Acting in
the patient's 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.
In some cases, the doctor's expanded goals may include allowing the natural
dying process (neither hastening nor delaying death, but `letting nature take its
course'), thus avoiding or reducing the sufferings of the patient and his
family, and providing emotional support. This is not to be confused with
euthanasia, which involves the doctor's deliberate and intentional act through administering
a lethal injection to end the life of the patient.
In the present case
have no indication of Aruna Shanbaug's views or wishes with respect to
life-sustaining treatments for a permanent vegetative state.
decision regarding her treatment will have to be taken by a surrogate
staff of the KEM hospital have looked after her for 37 years, after she was
abandoned by her family. We believe that the Dean of the KEM Hospital (representing
the staff of hospital) is an appropriate surrogate.
the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together
acting in the best interest of the patient, feel that life sustaining treatments
should continue, their decision should be respected.
the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together
acting in the best interest of the patient, feel that withholding or withdrawing
life-sustaining treatments is the appropriate course of action, they should be allowed
to do so, and their actions should not be considered unlawful.
complete the narration of facts and before we come to the legal issues
involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has issued
a statement on 24.1.2011 opposing euthanasia for the petitioner :- "She
means a lot to KEM hospital. She is on liquid diet and loves listening to music.
We have never subjected her to intravenous food or fed her via a tube. All these
years, she hasn't had even one bedsore. When those looking after her do 26 not
have a problem, I don't understand why a third party who has nothing to do with
her [Pinky Virani who has moved the apex court to seek euthanasia for Shanbaug]
needs to worry," added Dr Oak, who, when he took over as dean of KEM hospital
in 2008, visited her first to take her blessings. "I call on her whenever
I get time. I am there whenever she has dysentery or any another problem. She is
very much alive and we have faith in the judiciary," said Dr Oak."
Sanjay Oak has subsequently filed an affidavit in this Court which states :
a. "Smt. Aruna Ramchandra
Shanbaug has been admitted in a single room in Ward No.4 which is a ward of general
internal medicine patients and she has been there for last 37 years. She is looked
after entirely by doctors, nurses and para-medical staff of KEM Hospital. She has
been our staff nurse and the unfortunate tragic incidence has happened with her
in KEM Hospital and I must put on record that the entire medical,
administrative, nursing and para-medical staff is extremely attached to her and
consider her as one of us. Her relatives and a gentleman (her fiancee) used to
visit her in the initial period of her illness but subsequently she has been
left to the care of KEM staff. I visit her frequently and my last visit to her
was on 22nd February, 2011. I give my observations as a Clinician about Smt.
Aruna Shanbaug as under :
b. It would be incorrect
to say that Smt. Aruna Shanbaug is an appropriate case for Coma. It appears
that for a crucial, critical period her brain was deprived of Oxygen supply and
this has resulted in her present state similar to that of Cerebral Palsy in the
newborn child. It is a condition where brain looses it's co-ordinatory, sensory
as well as motor functions and this includes loss of speech and perception. This
has resulted into a state which in a layman's words "Aruna lives in her
own world for last 37 years". She is lying in a bed in a single room for 33
years. She has not been able to stand or walk, nor have we attempted to do that
of late because 27 we fear that she is fragile and would break her bones if she
falls. Her extremities and fingers have developed contractures and subsequent to
non-use; there is wasting of her body muscles.
Her eyes are open and
she blinks frequently; however, these movements are not pertaining to a specific
purpose or as a response to a question. At times she is quiet and at times she
shouts or shrieks. However, I must say that her shouts and shrieks are completely
oblivious to anybody's presence in her room. It is not true that she shouts
after seeing a man. I do not think Aruna can distinguish between a man and a woman,
nor can she even distinguish between ordinate and inordinate object. We play devotional
songs rendered by Sadguru Wamanrao Pai continuously in her room and she lies down
on her bed listening to them. She expresses her displeasure by grimaces and shouts
if the tape recorder is switched off. All these years she was never fed by tube
and whenever a nurse used to take food to her lips, she used to swallow it.
It is only since September
2010 she developed Malaria and her oral intake dropped. In order to take care
of her calorie make need, nurses cadre resorted to naso-gastric tube feed and now
she is used to NG feeding. However, if small morsels are held near her lips, Aruna
accepts them gladly. It appears that she relishes fish and occasionally smiles when
she is given non-vegetarian food. However, I am honest in admitting that her smiles
are not purposeful and it would be improper to interpret them as a signal of
gratification. I must put on record that in the world history of medicine there
would not be another single case where such a person is cared and nurtured in
bed for 33 long years and has not developed a single bed sore. This speaks of
volumes of excellence of nursing care that KEM Nursing staff has given to her. c)
This care is given not as a part of duty but as a part of feeling of oneness.
With every new batch of
entrants, the student nurses are introduced to her and they are told that she was
one of us and she continues to be one of us and then they whole-heartedly take
care of Aruna. In my opinion, this one is finest example of love, professionalism,
dedication and commitment to one of our professional colleagues who is ailing 28
and cannot support herself. Not once, in this long sojourn of 33 years, anybody
has thought of putting an end to her so called vegetative existence. There have
been several Deans and Doctors of KEM Hospital who have cared her in succession.
Right from illustrious Dr. C.K. Deshpande in whose tenure the incidence happened
in 1973, Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt.
N.A. Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us have
visited her room time and again and have cared for her and seen her through her
ups and downs.
The very idea of withholding
food or putting her to sleep by active medication (mercy killing) is extremely difficult
for anybody working in Seth GSMC & KEM Hospital to accept and I sincerely
make a plea to the Learned Counsel and Hon'ble Judges of Supreme Court of India
that this should not be allowed. Aruna has probably crossed 60 years of life
and would one day meet her natural end. The Doctors, Nurses and staff of KEM, are
determined to take care of her till her last breath by natural process. d) I do
not think it is proper on my part to make a comment on the entire case. However,
as a clinical surgeon for last 3 decades and as an administrator of the
hospitals for last 7 years and as a student of legal system of India (as I hold
"Bachelor of Law" degree from Mumbai University),
I feel that entire
society has not matured enough to accept the execution of an Act of Euthanasia
or Mercy Killing. I fear that this may get misused and our monitoring and
deterring mechanisms may fail to prevent those unfortunate incidences. To me
any mature society is best judged by it's capacity and commitment to take care
of it's "invalid" ones. They are the children of Lesser God and in
fact, developing nation as we are, we should move in a positive manner of
taking care of several unfortunate ones who have deficiencies, disabilities and
Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister- in-charge ward
no. 4 KEM hospital Lenny Cornielo, Assistant Matron 29 Urmila Chauhan and others
have also issued statements that they were looking after Aruna Shanbaug and
want her to live. "Aruna is the bond that unites us", the KEM Hospital
staff has stated. One retired nurse, Tidi Makwana, who used to take care of
Aruna while in service, has even offered to continue to take care of her
without any salary and without charging any traveling expenses.
have referred to these statements because it is evident that the KEM Hospital staff
right from the Dean, including the present Dean Dr. Sanjay Oak and down to the
staff nurses and para-medical staff have been looking after Aruna for 38 years day
and night. What they have done is simply marvelous. They feed Aruna, wash her,
bathe her, cut her nails, and generally take care of her, and they have been doing
this not on a few occasions but day and night, year after year. The whole
country must learn the meaning of dedication and sacrifice from the KEM
hospital staff. In 38 years Aruna has not developed one bed sore.
is thus obvious that the KEM hospital staff has developed an emotional bonding
and attachment to Aruna Shanbaug, and in a sense they are her real family
today. Ms. Pinki Virani who claims to be the next friend of Aruna Shanbaug and
has filed this petition on her behalf is not a relative 30 of Aruna Shanbaug
nor can she claim to have such close emotional bonding with her as the KEM hospital
staff. Hence, we are treating the KEM hospital staff as the next friend of Aruna
Shanbaug and we decline to recognize Ms. Pinki Virani as her next friend. No
doubt Ms. Pinki Virani has written a book about Aruna Shanbaug and has visited
her a few times, and we have great respect for her for the social causes she
has espoused, but she cannot claim to have the extent of attachment or bonding with
Aruna which the KEM hospital staff, which has been looking after her for years,
claims to have. SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES
Shekhar Naphade, learned senior counsel for the petitioner has relied on the
decision of this Court in Vikram Deo Singh Tomar vs. State of Bihar 1988 (Supp)
SCC 734 (vide para 2) where it was observed by this Court : "We live in an
age when this Court has demonstrated, while interpreting Article 21 of the
Constitution, that every person is entitled to a quality of life consistent with
his human personality. The right to live with human dignity is the fundamental
right of every Indian citizen".
has also relied on the decision of this Court in P. Rathinam vs. Union of India
and another (1994) 3 SCC 394 in which a two-Judge bench of this Court quoted
with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in
which it was mentioned : "Life is not mere living but living in health. Health
is not the absence of illness but a glowing vitality".
decision in Rathinam's case (supra) was, however, overruled by a Constitution Bench
decision of this Court in Gian Kaur vs. State of Punjab (1996) 2 SCC 648.
Naphade, however, has invited our attention to paras 24 & 25 of the
aforesaid decision in which it was observed : "(24) Protagonism of
euthanasia on the view that existence in persistent vegetative state (PVS) is
not a benefit to the patient of a terminal illness being unrelated to the
principle of 'sanctity of life' or the right to live with dignity' is of no assistance
to determine the scope of Article 21 for deciding whether the guarantee of
right to life' therein includes the right to die'. The right to life' including
the right to live with human dignity would mean the existence of such a right
upto the end of natural life.
This also includes
the right to a dignified life upto the point of death including a dignified procedure
of death. In other words, this may include the right of a dying man to also die
with dignity when his life is ebbing out. But the 'right to die' with dignity
at the end of life is not to be confused or equated 32 with the right to die' an
unnatural death curtailing the natural span of life. (25) A question may arise,
in the context of a dying man, who is, terminally ill or in a persistent
vegetative state that he may be permitted to terminate it by a premature
extinction of his life in those circumstances. 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.
The debate even in such
cases to permit physician assisted termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the view of permitting
termination of life in such cases to reduce the period of suffering during the process
of certain natural death is not available to interpret Article 21 to include
therein the right to curtail the natural span of life". He has
particularly emphasized paragraph 25 of the said judgment in support of his
submission that Aruna Shanbaug should be allowed to die.
have carefully considered paragraphs 24 and 25 in Gian Kaur's case (supra) and
we are of the opinion that all that has been said therein is that the view in Rathinam's
case (supra) that the right to life includes the right to die is not correct. We
cannot construe Gian Kaur's case (supra) to mean anything beyond that. In fact,
it has been specifically mentioned in paragraph 25 of the aforesaid decision
that "the debate even in such cases to 33 permit physician assisted termination
of life is inconclusive". Thus it is obvious that no final view was expressed
in the decision in Gian Kaur's case beyond what we have mentioned above.
Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next friend
of Aruna as she has written a book on her life called `Aruna's story' and has been
following Aruna's case from 1980 and has done whatever possible and within her
means to help Aruna. Mr. Naphade has also invited our attention to the report
of the Law Commission of India, 2006 on `Medical Treatment to Terminally Ill Patients'.
We have perused the said report carefully.
Attorney General appearing for the Union of India after inviting our attention to
the relevant case law submitted as under :
Ramchandra Shanbaug has the right to live in her present state.
state that Aruna Ramchandra Shanbaug is presently in does not justify terminating
her life by withdrawing hydration/food/medical support.
aforesaid acts or series of acts and/or such omissions will be cruel, inhuman
of hydration/food/medical support to a patient is unknown to Indian law and is
contrary to law.
case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug,
the efforts which have been put in by batches after batches of nurses of KEM
Hospital for the last 37 years will be undermined.
causing a deep sense of resentment in the nursing staff as well as other well
wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the management, such
acts/omissions will lead to disheartenment in them and large scale
any event, these acts/omissions cannot be permitted at the instance of Ms.
Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug
without any locus.
General stated that the report of the Law Commission of India on euthanasia has
not been accepted by the Government of India. He further submitted that Indian
society is emotional and care-oriented. We do not send our parents to old age
homes, as it happens in the West. He stated that there was a great danger in
permitting euthanasia that the relatives of a person may conspire with doctors
and get him killed to inherit his property. He further submitted that tomorrow
there may be a cure to a medical state perceived as incurable today.
T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus
Curiae, in his erudite submissions explained to us the law on the point. He
submitted that in general in common law it is the right 35 of every individual to
have the control of his own person free from all restraints or interferences of
others. Every human being of adult years and sound mind has a right to
determine what shall be done with his own body. In the case of medical
treatment, for example, a surgeon who performs an operation without the
patient's consent commits assault or battery.
follows as a corollary that the patient possesses the right not to consent i.e.
to refuse treatment. (In the United States this right is reinforced by a
Constitutional right of privacy). This is known as the principle of self- determination
or informed consent.
Andhyarujina submitted that the principle of self-determination applies when a patient
of sound mind requires that life support should be discontinued. The same
principle applies where a patient's consent has been expressed at an earlier date
before he became unconscious or otherwise incapable of communicating it as by a
`living will' or by giving written authority to doctors in anticipation of his
incompetent situation. Mr. Andhyarujina differed from the view of the learned Attorney
General in that while the latter opposed even passive euthanasia, Mr. 36 Andhyarujina
was in favour of passive euthanasia provided the decision to discontinue life
support was taken by responsible medical practitioners.
the doctor acts on such consent there is no question of the patient committing
suicide or of the doctor having aided or abetted him in doing so. It is simply
that the patient, as he is entitled to do, declines to consent to treatment
which might or would have the effect of prolonging his life and the doctor has in
accordance with his duties complied with the patient's wishes.
troublesome question is what happens when the patient is in no condition to be
able to say whether or not he consents to discontinuance of the treatment and has
also given no prior indication of his wishes with regard to it as in the case of
Aruna. In such a situation the patient being incompetent to express his
self-determination the approach adopted in some of the American cases is of "substituted
judgment" or the judgment of a surrogate. This involves a detailed inquiry
into the patient's views and preferences. The surrogate decision maker has to
gather from material facts as far as possible the decision which the incompetent
patient would have made if he was competent. However, such a test is not
favoured in English law in relation to incompetent adults.
any indication from a patient who is incompetent the test which is adopted by Courts
is what is in the best interest of the patient whose life is artificially prolonged
by such life support. This is not a question whether it is in the best interest
of the patient that he should die. The question is whether it is in the best
interest of the patient that his life should be prolonged by the continuance of
the life support treatment. This opinion must be formed by a responsible and competent
body of medical persons in charge of the patient.
withdrawal of life support by the doctors is in law considered as an omission
and not a positive step to terminate the life. The latter would be euthanasia,
a criminal offence under the present law in UK, USA and India.
such a situation, generally the wishes of the patient's immediate family will
be given due weight, though their views cannot be determinative of the carrying
on of treatment as they cannot dictate to responsible and competent doctors what
is in the best interest of the patient. However, experience shows that in most cases
the opinions of the doctors and the immediate relatives coincide.
this Court has held that there is no right to die (suicide) under Article 21 of
the Constitution and attempt to suicide is a crime vide Section 309 IPC, the
Court has held that the right to life includes the right to live with human
dignity, and in the case of a dying person who is terminally ill or in a
permanent vegetative state he may be permitted to terminate it by a premature
extinction of his life in these circumstances and it is not a crime vide Gian
Kaur's case (supra).
Andhyarujina submitted that the decision to withdraw the life support is taken in
the best interests of the patient by a body of medical persons. It is not the
function of the Court to evaluate the situation and form an opinion on its own.
In England for historical reasons the parens patriae jurisdiction over adult mentally
incompetent persons was abolished by statute and the Court has no power now to
give its consent. In this situation, the Court only gives a declaration that
the proposed omission by doctors is not unlawful.
U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who
lack capacity and to determine what is in their best interests and the power to
make declaration by a special Court of Protection as to the lawfulness of any
act done in relation to a patient.
Andhyarujina submitted that the withdrawal of nutrition by stopping essential food
by means of nasogastric tube is not the same as unplugging a ventilator which artificially
breathes air into the lungs of a patient incapable of breathing resulting in instant
death. In case of discontinuance of artificial feeding the patient will as a
result starve to death with all the sufferings and pain and distress associated
with such starving. This is a very relevant consideration in a PVS patient like
Aruna who is not totally unconscious and has sensory conditions of pain etc. unlike
Antony Bland in Airedale vs. Director MHD (1993) 2 WLR 316 who was totally unconscious.
Would the doctor be able to avoid such pain or distress by use of sedatives
etc.? In such a condition would it not be more appropriate to continue with the
nasogastric feeding but not take any other active steps to combat any other
illness which she may contract and which may lead to her death?
Andhyarujina further submitted that in a situation like that of Aruna, it is also
necessary to recognize the deep agony of nurses of the hospital who have with
deep care looked after her for over 37 years and who 40 may not appreciate the
withdrawal of the life support. It may be necessary that their views should be
considered by the Court in some appropriate way.
Andhyarujina, in the course of his submission stated that some Courts in USA
have observed that the view of a surrogate may be taken to be the view of the
incompetent patient for deciding whether to withdraw the life support, though
the House of Lords in Airedale's case has not accepted this. He submitted that
relatives of Aruna do not seem to have cared for her and it is only the nursing
staff and medical attendants of KEM hospital who have looked after her for 37
years. He has also submitted that though the humanistic intention of Ms. Pinky
Virani cannot be doubted, it is the opinion of the attending doctors and
nursing staff which is more relevant in this case as they have looked after her
for so many years.
Pallav Shishodia, learned senior counsel for the Dean, KEM hospital, Mumbai
submitted that Ms. Pinky Virani has no locus standi in the matter and it is
only the KEM hospital staff which could have filed such a writ petition.
have also heard learned counsel for the State of Maharashtra, Mr. Chinmoy Khaldkar
and other assisting counsel whose names have been 41 mentioned in this
judgment. They have been of great assistance to us as we are deciding a very sensitive
and delicate issue which while requiring a humanistic approach, also requires
great case and caution to prevent misuse. We were informed that not only the learned
counsel who argued the case before us, but also the assistants (whose names
have been mentioned in the judgment) have done research on the subject for
several weeks, and indeed this has made our task easier in deciding this case. They
therefore deserve our compliment and thanks. Legal Issues : Active and Passive
now to the legal issues in this case, it may be noted that euthanasia 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.
general legal position all over the world seems to be that while active euthanasia
is illegal unless there is legislation permitting it, passive 42 euthanasia is
legal even without legislation provided certain conditions and safeguards are
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 the case of the former, the latter poses
several problems, which we shall address. ACTIVE EUTHANASIA
already stated above active euthanasia is a crime all over the world except
where permitted by legislation. In India active euthanasia is illegal and a
crime under section 302 or at least section 304 IPC. Physician assisted suicide
is a crime under section 306 IPC (abetment to suicide).
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 this deep sleep.
distinction is sometimes drawn 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/States the latter is legal while the former is not.
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.
important idea behind this distinction is that in "passive euthanasia"
the doctors are not actively killing anyone; they are simply not saving him.
While we usually applaud someone who saves another person's life, we do not
normally condemn someone for failing to do so. If one rushes into a burning
building and carries someone out to safety, he will probably be called a hero.
But if one sees a burning building and people screaming for help, and he stands
on the sidelines -- whether out of fear for his own safety, or the belief that an
inexperienced and ill-equipped person like himself would only get in the way of
the professional firefighters, or whatever -- if one does nothing, few would
judge him for his inaction. One would surely not be prosecuted for homicide.
(At least, not unless one started the fire in the first place.)
proponents of euthanasia say that while we can debate whether active euthanasia
should be legal, there can be no debate about passive euthanasia: You cannot
prosecute someone for failing to save a life. Even if you think it would be
good for people to do X, you cannot make it illegal for people to not do X, or everyone
in the country who did not do X today would have to be arrested.
persons are of the view that the distinction is not valid. They give the
example of the old joke about the child who says to his teacher, "Do you think
it's right to punish someone for something that he didn't do?" "Why,
of course not," the teacher replies. "Good," the child says,
"because I didn't do my homework."
fact we have many laws that penalize people for what they did not do. A person cannot
simply decide not to pay his income taxes, or not bother to send his/her children
to school (where the law requires sending them), or not to obey a policeman's
order to put down one's gun.
we are of the opinion that the distinction is valid, as has been explained in some
details by Lord Goff in Airedale's case (infra) which we shall presently
discuss. LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN
Although in the present case we are dealing with a case related to passive
euthanasia, it would be of some interest to note the legislations in certain
countries permitting active euthanasia. These are given below. 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.
criteria concern the patient's request, the patient's 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. To
demonstrate their compliance, the Act requires physicians to report euthanasia
to a review committee. 46 The legal debate concerning euthanasia in the Netherlands
took off with the "Postma case" in 1973, concerning a physician who had
facilitated the death of her mother following repeated explicit requests for euthanasia.
While the physician was convicted, the court's judgment set out criteria when a
doctor would not be required to keep a patient alive contrary to his will. This
set of criteria was formalized in the course of a number of court cases during
the 1980s. Termination of Life on Request and Assisted Suicide (Review Procedures)
Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted
suicide in very specific cases, under very specific circumstances.
The law was proposed by
Els Borst, the minister of Health. The procedures codified in the law had been a
convention of the Dutch medical community for over twenty years. The law allows
a medical review board to suspend prosecution of doctors who performed euthanasia
when each of the following conditions is fulfilled: the patient's suffering is
unbearable with no prospect of improvement 7 the patient's request for
euthanasia must be voluntary and persist over time (the request cannot be granted
when under the influence of others, psychological illness, or drugs) 47 7 the
patient must be fully aware of his/her condition, prospects and options 7 there
must be consultation with at least one other independent doctor who needs to
confirm the conditions mentioned above 7 the death must be carried out in a
medically appropriate fashion by the doctor or patient, in which case the
doctor must be present 7 the patient is at least 12 years old (patients between
12 and 16 years of age require the consent of their parents) The doctor must also
report the cause of death to the municipal coroner in accordance with the
relevant provisions of the Burial and Cremation Act.
A regional review
committee assesses whether a case of termination of life on request or assisted
suicide complies with the due care criteria. Depending on its findings, the case
will either be closed or, if the conditions are not met, brought to the
attention of the Public Prosecutor. Finally, the legislation offers an explicit
recognition of the validity of a written declaration of the will of the patient
regarding euthanasia (a "euthanasia directive"). Such declarations can
be used when a patient is in a coma or otherwise unable to state if they wish
to be euthanized. 48 Euthanasia remains a criminal offense in cases not meeting
the law's specific conditions, with the exception of several situations that are
not subject to the restrictions of the law at all, because they are considered
normal medical practice. These are : 7 stopping or not starting a medically
useless (futile) treatment 7 stopping or not starting a treatment at the
patient's request 7 speeding up death as a side-effect of treatment necessary for
alleviating serious suffering Euthanasia of children under the age of 12
remains technically illegal; however, Dr. Eduard Verhagen has documented several
cases and, together with colleagues and prosecutors, has developed a protocol
to be followed in those cases. Prosecutors will refrain from pressing charges
if this Groningen Protocol is followed. Switzerland: Switzerland has an unusual
position on assisted suicide: it is legally permitted and can be performed by non-physicians.
However, euthanasia is
illegal, the difference between assisted suicide and euthanasia being that
while in the former the patient administers the 49 lethal injection himself, in
the latter a doctor or some other person administers it. Article 115 of the
Swiss penal code, which came into effect in 1942 (having been approved in
1937), 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. Switzerland seems
to be the only country in which the law limits the circumstances in which assisted
suicide is a crime, thereby decriminalising it in other cases, without
requiring the involvement of a physician. Consequently, non-physicians have participated
in assisted suicide.
However, legally, active
euthanasia e.g. administering a lethal injection by a doctor or some other
person to a patient is illegal in Switzerland (unlike in Holland where it is legal
under certain conditions). 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. 50 Belgium: Belgium became the second country in Europe after Netherlands
to legalize the practice of euthanasia in September 2002. The Belgian law sets out
conditions under which suicide can be practised without giving doctors a
licence to kill. Patients wishing to end their own lives must be conscious when
the demand is made and repeat their request for euthanasia.
They have to be under
"constant and unbearable physical or psychological pain" resulting
from an accident or incurable illness. The law gives patients the right to receive
ongoing treatment with painkillers -- the authorities have to pay to ensure
that poor or isolated patients do not ask to die because they do not have money
for such treatment. Unlike the Dutch legislation, minors cannot seek assistance
to die. In the case of someone who is not in the terminal stages of illness, a third
medical opinion must be sought. Every mercy killing case will have to be filed
at a special commission to decide if the doctors in charge are following the
U.K., Spain, Austria,
Italy, Germany, France, etc. In none of these countries is euthanasia or physician
assisted death legal. In January 2011 the French Senate defeated by a 170-142
vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing
physician assisted suicide, was blocked, and never became law. United States of
America: 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. As already pointed
out above, the difference between euthanasia and physician assisted suicide
lies in who administers the lethal medication. 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. Oregon: Oregon was the first state in U.S.A. to legalize
physician assisted death.
legislature enacted the Oregon Death with Dignity Act, in 1997. Under the Death
With Dignity Act, a person who sought physician-assisted suicide would have to
meet certain criteria: 7 He must be an Oregon resident, at least 18 years old,
and must have decision making capacity. 7 The person must be terminally ill,
having six months or less to live. 7 The person must make one written and two oral
requests for medication to end his/her life, the written one substantially in
the form provided in the Act, signed, dated, witnessed by two persons in the presence
of the patient who attest that the person is capable, acting voluntarily and not
being coerced to sign the request. There are stringent qualifications as to who
may act as a witness. 7 The patient's decision must be an `informed' one, and
the attending physician is obligated to provide the patient with information about
the diagnosis, prognosis, potential risks, and probable consequences of taking the
prescribed medication, and alternatives, including, but not limited to comfort care,
hospice care and pain control. Another physician must confirm the diagnosis, the
patient's decision making capacity, and voluntariness of the patient's
Counselling has to be
provided if the patient is suffering from depression or a mental disorder which
may impact his judgment. 7 There has to be a waiting period of 15 days, next of
kin have to be notified, and State authorities have to be informed. 7 The
patient can rescind his decision at any time In response to concerns that
patients with depression may seek to end their lives, the 1999 amendment
provides that the attending physician must determine that the patient does not have
`depression causing impaired judgment' before prescribing the medication. Under
the law, a person who met all requirements could receive a prescription of a
barbiturate that would be sufficient to cause death. However, the lethal injection
must be administered by the patient himself, and physicians are prohibited from
administering it. The landmark case to declare that the practice of euthanasia by
doctors to help their patients shall not be taken into cognizance was Gonzalez
vs Oregon decided in 2006. After the Oregon Law was enacted about 200 persons have
had euthanasia in Oregon.
was the second state in U.S.A. which allowed the practice of physician assisted
death in the year 2008 by passing the Washington Death with Dignity Act, 2008. Montana:
Montana was the third state (after Oregon and Washington) in U.S.A. to legalize
physician assisted deaths, but this was done by the State judiciary and not the
legislature. On December 31, 2009, the Montana Supreme Court delivered its
verdict in the case of Baxter v. Montana permitting physicians to prescribe lethal
indication. The court held that there was "nothing in Montana Supreme Court
precedent or Montana statutes indicating that physician aid in dying is against
public policy." Other States in U.S.A.: In no other State in U.S.A. is
euthanasia or physician assisted death legal. Michigan banned euthanasia and
assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death')
began encouraging and assisting in suicides.
He was convicted in
1999 for 55 an assisted suicide displayed on television, his medical licence cancelled,
and he spent 8 years in jail. In 1999 the State of Texas enacted the Texas
Futile Care Law which entitles Texas hospitals and doctors, in some situations,
to withdraw life support measures, such as mechanical respiration, from
terminally ill patient when such treatment is considered futile and
inappropriate. However, Texas has not legalized euthanasia or physician assisted
death. In California, though 75 of people support physician assisted death, the
issue is highly controversial in the State legislature. Forty States in USA
have enacted laws which explicitly make it a crime to provide another with the
means of taking his or her life. In 1977 California legalized living wills, and
other States soon followed suit. A living will (also known as advance directive
or advance decision) is an instruction given by an individual while conscious
specifying what action should be taken in the event he/she is unable to make a
decision due to illness or incapacity, and appoints a person to take such decisions
on his/her behalf. It may include a directive to withdraw life support on
certain eventualities. 56 Canada:
In Canada, physician
assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.
The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez
v. British Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of
43, was diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian
Supreme Court to allow someone to aid her in ending her life. Her condition was
deteriorating rapidly, and the doctors told her that she would soon lose the
ability to swallow, speak, walk, and move her body without assistance. Thereafter
she would lose her capacity to breathe without a respirator, to eat without a
gastrotomy, and would eventually be confined to bed. Her life expectancy was 2 to
The Canadian Supreme Court
was deeply divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka,
speaking for the majority (which included Justices La Forest, Gonthier,
Iacobucci and Major) observed : "Sanctity of life has been understood historically
as excluding freedom of choice in the self infliction of 57 death, and certainly
in the involvement of others in carrying out that choice. At the very least, no
new consensus has emerged in society opposing the right of the State to regulate
the involvement of others in exercising power over individuals ending their
lives." The minority, consisting of Chief Justice Lamer and Justices L'Heureux-Dube,
Cory and McLachlin, dissented. PASSIVE EUTHANASIA
51. Passive euthanasia
is usually defined as withdrawing medical treatment with a deliberate intention
of causing the patient's death. For example, if a patient requires kidney
dialysis to survive, not giving dialysis although the machine is available, is passive
euthanasia. Similarly, if a patient is in coma or on a heart lung machine,
withdrawing of the machine will ordinarily result in passive euthanasia. Similarly
not giving life saving medicines like antibiotics in certain situations may result
in passive euthanasia. Denying food to a person in coma or PVS may also amount
to passive euthanasia.
already stated above, 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 (which may be for 58 various reasons e.g., that he is in
great pain or that the money being spent on his treatment should instead be
given to his family who are in greater need, etc.), 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. Whether not taking food consciously and
voluntarily with the aim of ending one's life is a crime under section 309 IPC
(attempt to commit suicide) is a question which need not be decided in this
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.
is a plethora of case law on the subject of the Courts all over the world
relating to both active and passive euthanasia. It is not necessary to refer in
detail to all the decisions of the Courts in the world on the subject of euthanasia
or physically assisted dead (p.a.d.) but we think it appropriate to refer in
detail to certain landmark decisions, which have laid down the law on the
subject. 59 THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R.
the Airedale case decided by the House of Lords in the U.K., the facts were
that one Anthony Bland aged about 17 went to the Hillsborough Ground on 15th April
1989 to support the Liverpool Football Club. In the course of the disaster which
occurred on that day, his lungs were crushed and punctured and the supply to
his brain was interrupted. As a result, he suffered catastrophic and irreversible
damage to the higher centres of the brain. For three years, he was in a
condition known as `persistent vegetative state (PVS). This state arises from
the destruction of the cerebral cortex on account of prolonged deprivation of oxygen,
and the cerebral cortex of Anthony had resolved into a watery mass. The cortex is
that part of the brain which is the seat of cognitive function and sensory
capacity. Anthony Bland could not see, hear or feel anything. He could not
communicate in any way. His consciousness, which is an essential feature of an
individual personality, had departed forever. However, his brain-stem, which
controls the reflective functions of the body, in particular the heart beat, breathing
and digestion, continued to operate. He was in persistent vegetative state (PVS)
which is a recognized medical condition quite distinct from other 60 conditions
sometimes known as "irreversible coma", "the Guillain-Barre syndrome",
"the locked-in syndrome" and "brain death".
distinguishing characteristic of PVS is that the brain stem remains alive and functioning
while the cortex has lost its function and activity. Thus the PVS patient continues
to breathe unaided and his digestion continues to function. But although his
eyes are open, he cannot see. He cannot hear. Although capable of reflex
movement, particularly in response to painful stimuli, the patient is uncapable
of voluntary movement and can feel no pain. He cannot taste or smell. He cannot
speak or communicate in any way. He has no cognitive function and thus can feel
no emotion, whether pleasure or distress. The absence of cerebral function is not
a matter of surmise; it can be scientifically demonstrated. The space which the
brain should occupy is full of watery fluid.
order to maintain Mr. Bland in his condition, feeding and hydration were
achieved by artificial means of a nasogastric tube while the excretory functions
were regulated by a catheter and enemas. According to eminent medical opinion,
there was no prospect whatsoever that he would ever make a recovery from his
condition, but there was every likelihood that he would 61 maintain this state of
existence for many years to come provided the artificial means of medical care
this state of affairs the medical men in charge of Anthony Bland case took the view,
which was supported by his parents, that no useful purpose would be served by continuing
medical care, and that artificial feeding and other measures aimed at prolonging
his existence should be stopped. Since however, there was a doubt as to whether
this course might constitute a criminal offence, the hospital authorities sought
a declaration from the British High Court to resolve these doubts.
declaration was granted by the Family Division of the High Court on 19.11.1992
and that judgment was affirmed by the Court of Appeal on 9.12.1992. A further
appeal was made to the House of Lords which then decided the case.
broad issued raised before the House of Lords in the Airedale case (supra) was
"In what circumstances, if ever, can those having a duty to feed an
invalid lawfully stop doing so?" In fact this is precisely the question raised
in the present case of Aruna Shanbaug before us.
Airedale's case (supra), Lord Keith of Kinkel, noted that it was unlawful to
administer treatment to an adult who is conscious and of sound mind, without
his consent. Such a person is completely at liberty to decline to undergo
treatment, even if the result of his doing so will be that he will die. This extends
to the situation where the person in anticipation of his entering into a
condition such as PVS, gives clear instructions that in such an event he is not
to be given medical care, including artificial feeding, designed to keep him
was held that if a person, due to accident or some other cause becomes unconscious
and is thus not able to give or withhold consent to medical treatment, in that
situation it is lawful for medical men to apply such treatment as in their informed
opinion is in the best interests of the unconscious patient. That is what
happened in the case of Anthony Bland when he was first dealt with by the
emergency services and later taken to hospital.
the incident happened the first imperative was to prevent Anthony from dying,
as he would certainly have done in the absence of the steps that were taken. For
a time, no doubt, there was some hope that he might recover sufficiently for him
to be able to live a life that had some 63 meaning. Some patients who have suffered
damage to the cerebral cortex have, indeed, made a complete recovery. It all depends
on the degree of damage. But sound medical opinion takes the view that if a
P.V.S. patient shows no signs of recovery after six months, or at most a year,
then there is no prospect whatever of any recovery.
are techniques available which make it possible to ascertain the state of the cerebral
cortex, and in Anthony Bland's case these indicated that, it had degenerated into
a mass of watery fluid. In this situation the question before the House of
Lords was whether the doctors could withdraw medical treatment or feeding
Anthony Bland thus allowing him to die.
was held by Lord Keith that a medical practitioner is under no duty to continue
to treat such a patient where a large body of informed and responsible medical
opinion is to the effect that no benefit at all would be conferred by
continuance of the treatment. Existence in a vegetative state with no prospect of
recovery is by that opinion regarded as not being of benefit to the patient.
that existence in the persistent vegetative state is of no benefit to the
patient, the House of Lords then considered whether the principle of 64 the
sanctity of life which is the concern of the State (and the Judiciary is one of
the arms of the State) required the Court to hold that medical treatment to Bland
could not be discontinued.
Keith observed that the principle of sanctity of life is not an absolute one. For
instance, it does not compel the medical practitioner on pain of criminal sanction
to treat a patient, who will die, if he does not, according to the express wish
of the patient. It does not authorize forcible feeding of prisoners on hunger strike.
It does not compel the temporary keeping alive of patients who are terminally
ill where to do so would merely prolong their suffering. On the other hand, it forbids
the taking of active measures to cut short the life of a terminally-ill patient
(unless there is legislation which permits it).
Keith observed that although the decision whether or not the continued
treatment and cure of a PVS patient confers any benefit on him is essentially
one for the medical practitioners in charge of his case to decide, as a matter of
routine the hospital/medical practitioner should apply to the Family Division of
the High Court for endorsing or reversing the said decision. This is in the
interest of the protection of the patient, protection of the doctors, and for
the reassurance of the patient's family and the public.
In Airdale's case (Supra) another Judge on the Bench, Lord Goff of Chievely
observed:- "The central issue in the present case has been aptly stated by
the Master of the Rolls to be whether artificial feeding and antibiotic drugs may
lawfully be withheld from an insensate patient with no hope of recovery when it
is known that if that is done the patient will shortly thereafter die. The Court
of Appeal, like the President, answered this question generally in the affirmative,
and (in the declarations made or approved by them) specifically also in the
affirmative in relation to Anthony Bland .
I find myself to be in
agreement with the conclusions so reached by all the judges below, substantially
for the reasons given by them. But the matter is of such importance that I
propose to express my reasons in my own words. I start with the simple fact
that, in law, Anthony is still alive. It is true that his condition is such that
it can be described as a living death; but he is nevertheless still alive.
This is because, as a
result of developments in modern medical technology, doctors no longer associate
death exclusively with breathing and heart beat, and it has come to be accepted
that death occurs when the brain, and in particular the brain stem, has been
destroyed (see Professor Ian Kennedy's Paper entitled "Switching off Life Support
Machines: The Legal Implications" reprinted in Treat Me Right, Essays in
Medical Law and Ethics, (1988)), especially at pp. 351-2, and the material there
cited). There has been no dispute on this point in the present case, and it is
unnecessary for me to consider it further. The evidence is that Anthony's brain
stem is still alive and functioning and it follows that, in the present state of
medical science, he is still alive and should be so regarded as a matter of
It is on this basis
that I turn to the applicable principles of law. Here, the fundamental principle
is the principle of 66 the sanctity of human life - a principle long recognized
not only in our own society but also in most, if not all, civilized societies throughout
the modern world, as is indeed evidenced by its recognition both in article 2 of
the European Convention of Human Rights, and in article 6 of the International Covenant
of Civil and Political Rights. But this principle, fundamental though it is, is
not absolute. Indeed there are circumstances in which it is lawful to take
another man's life, for example by a lawful act of self-defence, or (in the days
when capital punishment was acceptable in our society) by lawful execution. We are
not however concerned with cases such as these. We are concerned with circumstances
in which it may be lawful to withhold from a patient medical treatment or care
by means of which his life may be prolonged.
But here too there is
no absolute rule that the patient's life must be prolonged by such treatment or
care, if available, regardless of the circumstances. First, it is established that
the principle of self- determination requires that respect must be given to the
wishes of the patient, so that if an adult patient of sound mind refuses, however
unreasonably, to consent to treatment or care by which his life would or might be
prolonged, the doctors responsible for his care must give effect to his wishes,
even though they do not consider it to be in his best interests to do so (see
Schloendorff v . Society of New York Hospital 105 N.E. 92, 93, per Cardozo J.
(1914); S. v . McC. (Orse S.) and M (D.S. Intervene); W v . W  A.C. 24,
43, per Lord Reid; and Sidaway v . Board of Governors of the Bethlem Royal Hospital
and the Maudsley Hospital  AC 871, 882, per Lord Scarman).
To this extent, the
principle of the sanctity of human life must yield to the principle of self-
determination (see Court of Appeal Transcript in the present case, at p. 38F per
Hoffmann L.J.), and, for present purposes perhaps more important, the doctor's duty
to act in the best interests of his patient must 67 likewise be qualified. On
this basis, it has been held that a patient of sound mind may, if properly informed,
require that life support should be discontinued: see Nancy B. v. Hotel Dieu de
Quebec (1992) 86 D.L.R. (4th) 385. Moreover the same principle applies where
the patient's refusal to give his consent has been expressed at an earlier date,
before he became unconscious or otherwise incapable of communicating it; though
in such circumstances especial care may be necessary to ensure that the prior refusal
of consent is still properly to be regarded as applicable in the circumstances which
have subsequently occurred (see, e.g. In re T. (Adult: Refusal of treatment)
 3 W.L.R. 782).
I wish to add that,
in cases of this kind, there is no question of the patient having committed suicide,
nor therefore of the doctor having aided or abetted him in doing so. It is
simply that the patient has, as he is entitled to do, declined to consent to treatment
which might or would have the effect of prolonging his life, and the doctor has,
in accordance with his duty, complied with his patient's wishes. But in many cases
not only may the patient be in no condition to be able to say whether or not he
consents to the relevant treatment or care, but also he may have given no prior
indication of his wishes with regard to it. In the case of a child who is a
ward of court, the court itself will decide whether medical treatment should be
provided in the child's best interests, taking into account medical opinion.
But the court cannot give its consent on behalf of an adult patient who is
incapable of himself deciding whether or not to consent to treatment. I am of the
opinion that there is nevertheless no absolute obligation upon the doctor who
has the patient in his care to prolong his life, regardless of the
circumstances. Indeed, it would be most startling, and could lead to the most
adverse and cruel effects upon the patient, if any such absolute rule were held
It is scarcely consistent
with the primacy given to the principle of self-determination in those cases in
which the patient of sound mind has declined to give his consent, that the law
should provide 68 no means of enabling treatment to be withheld in appropriate circumstances
where the patient is in no condition to indicate, if that was his wish, that he
did not consent to it. The point was put forcibly in the judgment of the Supreme
Judicial Court of Massachusetts in Superintendent of Belchertown State School v.
Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows: "To presume that the
incompetent person must always be subjected to what many rational and intelligent
persons may decline is to downgrade the status of the incompetent person by placing
a lesser value on his intrinsic human worth and vitality." I must however
stress, at this point, that the law draws a crucial distinction between cases in
which a doctor decides not to provide, or to continue to provide, for his patient
treatment or care which could or might prolong his life, and those in which he decides,
for example by administering a lethal drug, actively to bring his patient's life
to an end.
As I have already indicated,
the former may be lawful, either because the doctor is giving effect to his patient's
wishes by withholding the treatment or care, or even in certain circumstances in
which (on principles which I shall describe) the patient is incapacitated from stating
whether or not he gives his consent. But it is not lawful for a doctor to
administer a drug to his patient to bring about his death, even though that
course is prompted by a humanitarian desire to end his suffering, however great
that suffering may be: see Reg. v. Cox (Unreported), Ognall J., Winchester
Crown Court, 18 September 1992. So to act is to cross the Rubicon which runs
between on the one hand the care of the living patient and on the other hand euthanasia
- actively causing his death to avoid or to end his suffering. Euthanasia is
not lawful at common law.
It is of course well
known that there are many responsible members of our society who believe that
euthanasia should be made lawful; but that result could, I believe, only be achieved
by legislation which expresses the democratic will that so 69 fundamental a change
should be made in our law, and can, if enacted, ensure that such legalised
killing can only be carried out subject to appropriate supervision and control.
It is true that the drawing of this distinction may lead to a charge of hypocrisy;
because it can be asked why, if the doctor, by discontinuing treatment, is
entitled in consequence to let his patient die, it should not be lawful to put him
out of his misery straight away, in a more humane manner, by a lethal injection,
rather than let him linger on in pain until he dies.
But the law does not feel
able to authorize euthanasia, even in circumstances such as these; for once euthanasia
is recognized as lawful in these circumstances, it is difficult to see any
logical basis for excluding it in others. At the heart of this distinction lies
a theoretical question. Why is it that the doctor who gives his patient a lethal
injection which kills him commits an unlawful act and indeed is guilty of murder,
whereas a doctor who, by discontinuing life support, allows his patient to die,
may not act unlawfully - and will not do so, if he commits no breach of duty to
his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal
Law, 2nd ed., p. 282) that the reason is that what the doctor does when he
switches off a life support machine 'is in substance not an act but an omission
to struggle, and that 'the omission is not a breach of duty by the doctor
because he is not obliged to continue in a hopeless case'.
I agree that the doctor's
conduct in discontinuing life support can properly be categorized as an
omission. It is true that it may be difficult to describe what the doctor actually
does as an omission, for example where he takes some positive step to bring the
life support to an end. But discontinuation of life support is, for present
purposes, no different from not initiating life support in the first place. In
each case, the doctor is simply allowing his patient to die in the sense that he
is desisting from taking a step which might, in certain circumstances, prevent
his patient 70 from dying as a result of his pre-existing condition; and as a
matter of general principle an omission such as this will not be unlawful
unless it constitutes a breach of duty to the patient. I also agree that the
doctor's conduct is to be differentiated from that of, for example, an
interloper who maliciously switches off a life support machine because,
although the interloper may perform exactly the same act as the doctor who
discontinues life support, his doing so constitutes interference with the
life-prolonging treatment then being administered by the doctor.
Accordingly, whereas the
doctor, in discontinuing life support, is simply allowing his patient to die of
his pre- existing condition, the interloper is actively intervening to stop the
doctor from prolonging the patient's life, and such conduct cannot possibly be categorised
as an omission. The distinction appears, therefore, to be useful in the present
context in that it can be invoked to explain how discontinuance of life support
can be differentiated from ending a patient's life by a lethal injection. But
in the end the reason for that difference is that, whereas the law considers that
discontinuance of life support may be consistent with the doctor's duty to care
for his patient, it does not, for reasons of policy, consider that it forms any
part of his duty to give his patient a lethal injection to put him out of his
I return to the
patient who, because for example he is of unsound mind or has been rendered unconscious
by accident or by illness, is incapable of stating whether or not he consents to
treatment or care. In such circumstances, it is now established that a doctor may
lawfully treat such a patient if he acts in his best interests, and indeed
that, if the patient is already in his care, he is under a duty so to treat
him: see In re F  2 AC 1, in which the legal principles governing treatment
in such circumstances were stated by this House. For my part I can see no reason
why, as a matter of principle, a decision by a doctor whether or not to initiate,
or to 71 continue to provide, treatment or care which could or might have the
effect of prolonging such a patient's life, should not be governed by the same fundamental
principle. Of course, in the great majority of cases, the best interests of the
patient are likely to require that treatment of this kind, if available, should
be given to a patient. But this may not always be so.
To take a simple example
given by Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13
August 1992, at p. 35), to whose judgment in that case I wish to pay tribute, it
cannot be right that a doctor, who has under his care a patient suffering painfully
from terminal cancer, should be under an absolute obligation to perform upon him
major surgery to abate another condition which, if unabated, would or might shorten
his life still further. The doctor who is caring for such a patient cannot, in
my opinion, be under an absolute obligation to prolong his life by any means available
to him, regardless of the quality of the patient's life. Common humanity requires
otherwise, as do medical ethics and good medical practice accepted in this
country and overseas.
As I see it, the
doctor's decision whether or not to take any such step must (subject to his
patient's ability to give or withhold his consent) be made in the best
interests of the patient. It is this principle too which, in my opinion,
underlies the established rule that a doctor may, when caring for a patient who
is, for example, dying of cancer, lawfully administer painkilling drugs despite
the fact that he knows that an incidental effect of that application will be to
abbreviate the patient's life. Such a decision may properly be made as part of
the care of the living patient, in his best interests; and, on this basis, the
treatment will be lawful. Moreover, where the doctor's treatment of his patient
is lawful, the patient's death will be regarded in law as exclusively caused by
the injury or disease to which his condition is attributable.
It is of course the development
of modern medical technology, and in particular the development of life support
systems, which has rendered cases such as the 72 present so much more relevant
than in the past. Even so, where (for example) a patient is brought into
hospital in such a condition that, without the benefit of a life support system,
he will not continue to live, the decision has to be made whether or not to
give him that benefit, if available. That decision can only be made in the best
interests of the patient. No doubt, his best interests will ordinarily require
that he should be placed on a life support system as soon as necessary, if only
to make an accurate assessment of his condition and a prognosis for the future.
But if he neither recovers sufficiently to be taken off it nor dies, the
question will ultimately arise whether he should be kept on it indefinitely.
As I see it, that question
(assuming the continued availability of the system) can only be answered by reference
to the best interests of the patient himself, having regard to established medical
practice. Indeed, if the justification for treating a patient who lacks the capacity
to consent lies in the fact that the treatment is provided in his best interests,
it must follow that the treatment may, and indeed ultimately should, be
discontinued where it is no longer in his best interests to provide it. The question
which lies at the heart of the present case is, as I see it, whether on that
principle the doctors responsible for the treatment and care of Anthony Bland can
justifiably discontinue the process of artificial feeding upon which the
prolongation of his life depends.
It is crucial for the
understanding of this question that the question itself should be correctly formulated.
The question is not whether the doctor should take a course which will kill his
patient, or even take a course which has the effect of accelerating his death. The
question is whether the doctor should or should not continue to provide his
patient with medical treatment or care which, if continued, will prolong his
patient's life. The question is sometimes put in striking or emotional terms, which
can be misleading.
For example, in the case
of a life support system, it is sometimes asked: Should a doctor be entitled to
switch it off, or to pull the plug? And then it is 73 asked: Can it be in the
best interests of the patient that a doctor should be able to switch the life support
system off, when this will inevitably result in the patient's death? Such an approach
has rightly been criticised as misleading, for example by Professor Ian Kennedy
(in his paper in Treat Me Right, Essays in Medical Law and Ethics (1988), and
by Thomas J. in Re J.H.L. at pp. 21- 22. This is because the question is not
whether it is in the best interests of the patient that he should die. The question
is whether it is in the best interests of the patient that his life should be prolonged
by the continuance of this form of medical treatment or care.
The correct formulation
of the question is of particular importance in a case such as the present, where
the patient is totally unconscious and where there is no hope whatsoever of any
amelioration of his condition. In circumstances such as these, it may be difficult
to say that it is in his best interests that the treatment should be ended. But
if the question is asked, as in my opinion it should be, whether it is in his
best interests that treatment which has the effect of artificially prolonging his
life should be continued, that question can sensibly be answered to the effect
that it is not in his best interests to do so. (emphasis supplied)
a Discussion Paper on Treatment of Patients in Persistent Vegetative State
issued in September 1992 by the Medical Ethics Committee of the British Medical
Association certain safeguards were mentioned which should be observed before
constituting life support for such patients:- "(1) Every effort should be
made at rehabilitation for at least six months after the injury; (2) The diagnosis
of irreversible PVS should not be considered confirmed 74 until at least twelve
months after the injury, with the effect that any decision to withhold life prolonging
treatment will be delayed for that period; (3) The diagnosis should be agreed by
two other independent doctors; and (4) Generally, the wishes of the patient's immediate
family will be given great weight."
Goff observed that discontinuance of artificial feeding in such cases is not
equivalent to cutting a mountaineer's rope, or severing the air pipe of a deep
sea diver. The true question is not whether the doctor should take a course in
which he will actively kill his patient, but rather whether he should continue
to provide his patient with medical treatment or care which, if continued, will
prolong his life.
Browne-Wilkinson was of the view that removing the nasogastric tube in the case
of Anthony Bland cannot be regarded as a positive act causing the death. The tube
itself, without the food being supplied through it, does nothing. Its non
removal itself does not cause the death since by itself, it does not sustain life.
Hence removal of the tube would not constitute the actus reus of murder, since
such an act would not cause the death.
Mustill observed:- "Threaded through the technical arguments addressed to
the House were the strands of a much wider 75 position, that it is in the best
interests of the community at large that Anthony Bland's life should now end. The
doctors have done all they can. Nothing will be gained by going on and much
will be lost. The distress of the family will get steadily worse. The strain on
the devotion of a medical staff charged with the care of a patient whose condition
will never improve, who may live for years and who does not even recognize that
he is being cared for, will continue to mount. The large resources of skill, labour
and money now being devoted to Anthony Bland might in the opinion of many be more
fruitfully employed in improving the condition of other patients, who if treated
may have useful, healthy and enjoyable lives for years to come."
all the Judges of the House of Lords in the Airedale case (supra) were agreed
that Anthony Bland should be allowed to die.
(1993) decided by the House of Lords has been followed in a number of cases in
U.K., and 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 patient's best interest, the
said act cannot be regarded as a crime.
question, however, remains as to who is to decide what is the patient's 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 76 decisive (several of these
decisions have been referred to in Chapter IV of the 196th Report of the Law
Commission of India on Medical Treatment to Terminally ill Patients).
is ultimately for the Court to decide, as parens patriae, as to what 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 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.
parens patriae (father of the country) jurisdiction was the jurisdiction of the
Crown, which, as stated in Airedale, could be traced to the 13th Century. 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, has inherited the parens patriae
jurisdiction which formerly belonged to the King. U.S. decisions
two most significant cases of the U.S. Supreme Court that addressed the issue whether
there was a federal constitutional right to 77 assisted suicide arose from challenges
to State laws banning physician assisted suicide brought by terminally ill
patients and their physicians. These were Washington vs. Glucksberg 521 U.S. 702
(1997) and Vacco vs. Quill 521 U.S. 793 (1997).
Glucksberg's case, the U.S. Supreme Court held that the asserted right to
assistance in committing suicide is not a fundamental liberty interest protected
by the Due Process Clause of the Fourteenth Amendment. The Court observed : "The
decision to commit suicide with the assistance of another may be just as personal
and profound as the decision to refuse unwanted medical treatment, but it has never
enjoyed similar legal protection. Indeed the two acts are widely and reasonably
regarded as quite distinct."
Court went on to conclude that the Washington statute being challenged was rationally
related to five legitimate government interest : protection of life, prevention
of suicide, protection of ethical integrity of the medical profession,
protection of vulnerable groups, and protection against the "slippery
slope" towards euthanasia. The Court then noted that perhaps the individual
States were more suited to resolving or at least addressing the 78 myriad concerns
raised by both proponents and opponents of physician assisted suicide. The
Court observed : "Throughout the Nation, Americans are engaged in an earnest
and profound debate about the morality, legality and practicality of physician assisted
suicide. Our holding permits this debate to continue, as it should in a
Vacco's case (supra) the U.S. Supreme Court again recognized the distinction between
refusing life saving medical treatment and giving lethal medication. The Court disagreed
with the view of the Second Circuit Federal Court that ending or refusing
lifesaving medical treatment is nothing more nor less than assisted suicide. The
Court held that "the distinction between letting a patient die and making that
patient die is important, logical, rational, and well established". The
Court held that the State of New York could validly ban the latter.
Cruzan v. Director, MDH, 497 U.S. 261(1990) decided by the U.S. Supreme Court
the majority opinion was delivered by the Chief Justice Rehnquist.
that case, the petitioner Nancy Cruzan sustained injuries in an automobile
accident and lay in a Missouri State hospital in what has been referred to as a
persistent vegetative state (PVS), a condition in which a person exhibits motor
reflexes but evinces no indication of significant cognitive function. The state
of Missouri was bearing the cost of her care. 79 Her parents and co-guardians applied
to the Court for permission to withdraw her artificial feeding and hydration equipment
and allow her to die. While the trial Court granted the prayer, the State
Supreme Court of Missouri reversed, holding that under a statute in the State
of Missouri it was 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. The only evidence led on that point was the alleged
statement of Nancy Cruzan to a housemate about a year before the accident that
she did not want life as a `vegetable'. The State Supreme Court was of the view
that this did not amount to saying that medical treatment or nutrition or
hydration should be withdrawn.
Justice Rehnquist delivering the opinion of the Court (in which Justices White,
O'Connor, Scalia, and Kennedy, joined) in his judgment first noted the facts:- "On
the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled
down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was
discovered lying face down in a ditch without detectable respiratory or cardiac
function. Paramedics were able to restore her breathing and heartbeat at the
accident site, and she was transported to a hospital in an unconscious state. An
attending neurosurgeon diagnosed her as having sustained probable 80 cerebral contusions
compounded by significant anoxia (lack of oxygen).
The Missouri trial court
in this case found that permanent brain damage generally results after 6
minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen
from 12 to 14 minutes. She remained in a coma for approximately three weeks,
and then progressed to an unconscious state in which she was able to orally ingest
some nutrition. In order to ease feeding and further the recovery, surgeons implanted
a gastrostomy feeding and hydration tube in Cruzan with the consent of her then
husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a
Missouri state hospital in what is commonly referred to as a persistent
vegetative state: generally, a condition in which a person exhibits motor reflexes
but evinces no indications of significant cognitive function.
The State of Missouri
is bearing the cost of her care. [497 U.S. 261, 267] After it had become apparent
that Nancy Cruzan had virtually no chance of regaining her mental faculties,
her parents asked hospital employees to terminate the artificial nutrition and hydration
procedures. All agree that such a [497 U.S. 261, 268] removal would cause her death.
The employees refused to honor the request without court approval. The parents then
sought and received authorization from the state trial court for termination."
the trial Court allowed the petition the State Supreme Court of Missouri
reversed. The US Supreme Court by majority affirmed the verdict of the State
Justice Rehnquist noted that in law even touching of one person by another
without consent and without legal justification was a battery, and 81 hence illegal.
The notion of bodily integrity has been embodied in the requirement that informed
consent is generally required for medical treatment. As observed by Justice
Cardozo, while on the Court of Appeals of New York "Every human being of
adult years and sound mind has a right to determine what shall be done with his
own body, and a surgeon who performs an operation without his patient's consent
commits an assault, for which he is liable in damages." vide Schloendorff vs.
Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus
the informed consent doctrine has become firmly entrenched in American Tort Law.
The logical corollary of the doctrine of informed consent is that the patient generally
possesses the right not to consent, that is to refuse treatment.
question, however, arises in cases where the patient is unable to decide
whether the treatment should continue or not e.g. if he is in coma or PVS. Who
is to give consent to terminate the treatment in such a case? The learned Chief
Justice referred to a large number of decisions of Courts in U.S.A. in this
connection, often taking diverse approaches.
re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered severe brain damage
as a result of anoxia, and entered into PVS. Her father 82 sought judicial approval
to disconnect her respirator. The New Jersey Supreme Court granted the prayer,
holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate
treatment. The Court concluded that the way Karen's right to privacy could be
exercised would be to allow her guardian and family to decide whether she would
exercise it in the circumstances.
re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme
Court, in a case of an 84 year old incompetent nursing home resident who had suffered
irreversible mental and physical ailments, contrary to its decision in
Quinlan's case, decided to base its decision on the common law right to self
determination and informed consent. This right can be exercised by a surrogate decision
maker when there was a clear evidence that the incompetent person would have
exercised it. Where such evidence was lacking the Court held that an
individual's right could still be invoked in certain circumstances under objective
`best interest' standards. Where no trustworthy evidence existed that the individual
would have wanted to terminate treatment, and a person's suffering would make the
administration of life sustaining treatment inhumane, a pure objective 83 standard
could be used to terminate the treatment. If none of these conditions obtained,
it was best to err in favour of preserving life.
is important to note in Cruzan's case (supra) is that there was a statute of
the State of Missouri, unlike in Airedale's case (where there was none), which
required 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.
Cruzan's case (supra) the learned Chief Justice observed : "Not all incompetent
patients will have loved ones available to serve as surrogate decision makers. And
even where family members are present, there will be, of course, some unfortunate
situations in which family members will not act to protect a patient. A State is
entitled to guard against potential abuses in such situations."
learned Chief Justice further observed : "An erroneous decision not to terminate
results in maintenance of the status quo; the possibility of subsequent developments
such as advancements in medical science, the discovery of new evidence
regarding the patient's intent, changes in the law, or simply the unexpected
death of the patient despite the administration of life-sustaining treatment, at
least create the potential that a wrong decision will eventually be corrected
or its impact mitigated. An erroneous decision to withdraw 84 life-sustaining treatment,
however, is not susceptible of correction."
doubt Mr. Justice Brennan (with whom Justices Marshall and Blackmun joined) wrote
a powerful dissenting opinion, but it is not necessary for us to go into the question
whether the view of the learned Chief Justice or that of Justice Brennan, is
may be clarified that foreign decisions have only persuasive value in our
country, and are not binding authorities on our Courts. Hence we can even
prefer to follow the minority view, rather than the majority view, of a foreign
decision, or follow an overruled foreign decision.
case (supra) can be distinguished on the simple ground that there was a statute
in the State of Missouri, whereas there was none in the Airedale's case nor in
the present case before us. We are, therefore, of the opinion that the
Airedale's case (supra) is more apposite as a precedent for us. No doubt
foreign decisions are not binding on us, but they certainly have persuasive
value. LAW IN INDIA
India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide
(Section 309 of Indian Penal Code) are both criminal 85 offences. This is in
contrast to many countries such as USA where attempt to suicide is not a crime.
Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab,
1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful
in India. That decision overruled the earlier two Judge Bench decision of the
Supreme Court in P. Rathinam vs. Union of India, 1994(3) SCC 394. The Court held
that the right to life under Article 21 of the Constitution does not include
the right to die (vide para 33). In Gian Kaur's case (supra) the Supreme Court
approved of the decision of the House of Lords in Airedale's case (supra), and
observed that euthanasia could be made lawful only by legislation.
306 and 309 IPC read as under : "306. Abetment of suicide - If any person commits
suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine. 309. Attempt to commit suicide - Whoever attempts
to commit suicide and does any act towards the commission of such offence, shall
be punished with simple imprisonment for a term which may extend to one year or
with fine, or with both." 86
are of the opinion that although Section 309 Indian Penal Code (attempt to commit
suicide) has been held to be constitutionally valid in Gian Kaur's case
(supra), the time has come when it should be deleted by Parliament as it has
become anachronistic. A person attempts suicide in a depression, and hence he
needs help, rather than punishment. We therefore recommend to Parliament to
consider the feasibility of deleting Section 309 from the Indian Penal Code.
may be noted that in Gian Kaur's case (supra) although the Supreme Court has
quoted with approval the view of the House of Lords in Airedale's case (supra),
it has not clarified who can decide whether life support should be discontinued
in the case of an incompetent person e.g. a person in coma or PVS. This vexed
question has been arising often in India because there are a large number of
cases where persons go into coma (due to an accident or some other reason) or
for some other reason are unable to give consent, and then the question arises
as to who should give consent for withdrawal of life support.
is an extremely important question in India because of the unfortunate low level
of ethical standards to which our society has descended, its raw and widespread
commercialization, and the rampant 87 corruption, and hence, the Court has to
be very cautious that unscrupulous persons who wish to inherit the property of someone
may not get him eliminated by some crooked method.
since medical science is advancing fast, doctors must not declare a patient to be
a hopeless case unless there appears to be no reasonable possibility of any improvement
by some newly discovered medical method in the near future. In this connection we
may refer to a recent news item which we have come across on the internet of an
Arkansas man Terry Wallis, who was 19 years of age and newly married with a
baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet.
He went into coma in the crash in 1984, but after 24 years he has regained
consciousness. This was perhaps because his brain spontaneously rewired itself by
growing tiny new nerve connections to replace the ones sheared apart in the car
crash. Probably the nerve fibers from Terry Wallis' cells were severed but the cells
themselves remained intact, unlike Terri Schiavo, whose brain cells had died
(see Terri Schiavo's case on Google).
we make it clear that it is experts like medical practitioners who can decide
whether there is any reasonable possibility of a new medical discovery which
could enable such a patient to revive in the near future. 88 WHEN CAN A PERSON
IS SAID TO BE DEAD
is alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next
friend of Aruna Shanbaug) that in fact Aruna Shanbaug is already dead and hence
by not feeding her body any more we shall not be killing her. The question
hence arises as to when a person can be said to be dead ?
person's most important organ is his/her brain. This organ cannot be replaced. Other
body parts can be replaced e.g. if a person's hand or leg is amputed, he can get
an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when
the original one has failed. However, we cannot transplant a brain. If someone else's
brain is transplanted into one's body, then in fact, it will be that other person
living in one's body. The entire mind, including one's personality, cognition, memory,
capacity of receiving signals from the five senses and capacity of giving
commands to the other parts of the body, etc. are the functions of the brain. Hence
one is one's brain. It follows that one is dead when one's brain is dead.
is well-known, the brain cells normally do not multiply after the early years
of childhood (except in the region called hippocampus), unlike other cells like
skin cells, which are regularly dying and being replaced by 89 new cells
produced by multiplying of the old cells. This is probably because brain cells
are too highly specialized to multiply. Hence if the brain cells die, they
usually cannot be replaced (though sometimes one part of the brain can take over
the function of another part in certain situations where the other part has
been irreversibly damaged).
cells require regular supply of oxygen which comes through the red cells in the
blood. If oxygen supply is cut off for more than six minutes, the brain cells
die and this condition is known as anoxia. Hence, if the brain is dead a person
is said to be dead. BRAIN DEATH
term `brain death' has developed various meanings. While initially, death could
be defined as a cessation of breathing, or, more scientifically, a cessation of
heart-beat, recent medical advances have made such definitions obsolete. In order
to understand the nature and scope of brain death, it is worthwhile to look at how
death was understood. Historically, as the oft-quoted definition in Black's Law
Dictionary suggests, death was: "The cessation of life; the ceasing to
exist; defined by physicians as a total stoppage of the circulation of the
blood, and a cessation of the animal and 90 vital functions consequent thereon,
such as respiration, pulsation, etc.".1 This definition saw its echo in
numerous other texts and legal case law. This includes many American
precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961) ("Black's
Law Dictionary, 4th Ed., defines death as `the cessation of life; the ceasing
to exist ...."'); and Sanger v. Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907)
("The Encyclopaedic Dictionary, among others, gives the following
definitions of [death]: `The state of being dead; the act or state of dying; the
state or condition of the dead.' The Century Dictionary defines death as
`cessation of life; that state of a being, animal or vegetable, in which there
is a total and permanent cessation of all the vital functions."').2
understanding of death emerged from a cardiopulmonary perspective. In such cases,
the brain was usually irrelevant -- being understood that the cessation of
circulation would automatically lead to the death of brain cells, which require
a great deal of blood to survive.
invention of the ventilator and the defibrillator in the 1920s altered this understanding,
it being now possible that the cessation of 1 Black's Law Dictionary 488 (4th
ed., rev. 1968). 2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing
Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871.
(2007). 91 respiration and circulation, though critical, would no longer be
irreversible3. Hence, a present-day understanding of death as the irreversible
end of life must imply total brain failure, such that neither breathing, nor
circulation is possible any more. The question of the length of time that may
determine such death is significant, especially considering a significant increase
in organ donations across jurisdictions over the last few years.
death, may thus, be defined as "the irreversible cessation of all functions
of the entire brain, including the brain stem".4 It is important to understand
that this definition goes beyond acknowledging consciousness -- a person who is
incapable of ever regaining consciousness will not be considered to be brain
dead as long as parts of the brain e.g. brain stem that regulate involuntary
activity (such as response to light, respiration, heartbeat etc.) still
continue to function. Likewise, if consciousness, albeit severely limited, is
present, then a person will be considered to be alive even if he has suffered
brain stem death, wherein breathing and heartbeat can no longer be regulated and
must be mechanically determined. Hence, the international standard for brain death
is usually considered to include "whole-brain death", i.e., a
situation where the higher brain (i.e. the part of the brain that 3 Samantha
Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death:
A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J.
91, 96. (1999). 4 Section 1, Universal Determination of Death Act, (The United
States Legislation) 92 regulates consciousness and thought), the cerebellum or
mid-brain, and the brain-stem have all ceased to demonstrate any electrical
activity whatsoever for a significant amount of time. To say, in most cases,
that only the death of the higher brain would be a criteria for `brain death' may
have certain serious consequences -- for example, a foet us, technically under this
definition, would not be considered to be alive at all. Similarly, as per this,
different definitions of death would apply to human and non-human organisms.
death, thus, is different from a persistent vegetative state, where the brain stem
continues to work, and so some degree of reactions may occur, though the
possibility of regaining consciousness is relatively remote. Even when a person
is incapable of any response, but is able to sustain respiration and circulation,
he cannot be said to be dead. The mere mechanical act of breathing, thus, would
enable him or her to be "alive".
first attempt to define death in this manner came about in 1968, as a result of
a Harvard Committee constituted for the purpose.5 This definition, widely
criticized for trying to maximize organ donations, considered death to be a situation
wherein "individuals who had sustained traumatic brain 5 Ad Hoc Comm. of the
Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible
Coma, 205 JAMA 337, 337-40 (1968). 93 injury that caused them to be in an irreversible
coma, and had lost the ability to breathe spontaneously"6, would be considered
dead. This criticism led to the Presidents' Committee, set up for the purpose,
in 1981, defining death more vaguely as the point "where the body's
physiological system ceases to contribute a uniform whole". This definition
of whole brain death, however, is not without its critics. Some argue that the brain
is not always responsible for all bodily functioning- digestion, growth, and
some degree of movement (regulated by the spinal cord) may not require any
electrical activity in the brain. In order to combat this argument, and further
explain what brain death could include, the President's Committee on Bio-ethics
in the United States of America in 2008 came up with a new definition of brain death,
according to which a person was considered to be brain dead when he could no
longer perform the fundamental human work of an organism. These are: "(1)
"openness to the world, that is receptivity to stimuli and signals from the
surrounding environment," (2) "the ability to act upon the world to
obtain selectively what it needs. and (3) "the basic felt need that drives
the organism to act ... to obtain what it needs."7 6 Seema K. Shah,
Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination
of Death. 36 Am. J.L. & Med. 540 (2010). 7 Ibid. 94
this situation is reached, it is possible to assume that the person is dead,
even though he or she, through mechanical stimulation, may be able to breathe,
his or her heart might be able to beat, and he or she may be able to take some
form of nourishment. It is important, thus, that it be medically proved that a
situation where any human functioning would be impossible should have been reached
for there to be a declaration of brain death-- situations where a person is in
a persistent vegetative state but can support breathing, cardiac functions, and
digestion without any mechanical aid are necessarily those that will not come
within the ambit of brain death.
legal terms, the question of death would naturally assume significance as death
has a set of legal consequences as well. As per the definition in the American Uniform
Definition of Death Act, 1980. an individual who "sustain[s] . . .
irreversible cessation of all functions of the entire brain, including the
brain stem, is dead." This stage, thus, is reached at a situation where not
only consciousness, but every other aspect of life regulated from the brain can
no longer be so regulated.
the case of `euthanasia', however, the situation is slightly different. In
these cases, it is believed, that a determination of when it would be right or
fair to disallow resuscitation of a person who is incapable of expressing 95 his
or her consent to a termination of his or her life depends on two circumstances:
a. when a person is only kept alive mechanically, i.e. when not only consciousness
is lost, but the person is only able to sustain involuntary functioning through
advanced medical technology--such as the use of heart-lung machines, medical ventilators
etc. b. when there is no plausible possibility of the person ever being able to
come out of this stage. Medical "miracles" are not unknown, but if a
person has been at a stage where his life is only sustained through medical
technology, and there has been no significant alteration in the person's
condition for a long period of time--at least a few years--then there can be a
fair case made out for passive euthanasia. To extend this further, especially
when a person is incapable of being able to give any consent, would amount to
committing judicial murder.
this connection we may refer to the Transplantation of Human Organs Act, 1994
enacted by the Indian Parliament. Section 2(d) of the Act states : "brain-stem
death" means the stage at which all functions of the brain-stem have
permanently and irreversibly ceased and is so certified under sub-section (6)
of section 3:"
3(6) of the said Act states: "(6) Where any human organ is to be removed from
the body of a person in the event of his brain-stem death, no such removal shall
be undertaken unless such death is certified, in such form and in such manner and
on satisfaction of such conditions and requirements as may be prescribed, by a Board
of medical experts consisting of the following, namely:-
registered medical practitioner, in charge of the hospital in which brain-stem
death has occurred;
independent registered medical practitioner, being a specialist, to be nominated
by the registered medical practitioner specified in clause (i), from the panel of
names approved by the Appropriate Authority;
neurologist or a neurosurgeon to be nominated by the registered medical practitioner
specified in clause (i), from the panel of names approved by the Appropriate
Authority; and (iv) the registered medical practitioner treating the person
whose brain-stem death has occurred".
the above Act was only for the purpose of regulation of transplantation of human
organs it throws some light on the meaning of brain death.
the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the
report of Committee of Doctors which we have quoted above it appears that she
has some brain activity, though very little.
recognizes that persons are around her and expresses her like or dislike by making
some vocal sound and waving her hand by certain movements. She smiles if she
receives her favourite food, fish and chicken soup. She breathes normally and
does not require a heart lung machine or intravenous tube for feeding. Her
pulse rate and respiratory rate and blood pressure are normal. She was able to
blink well and could see her doctors who examined her. When an attempt was made
to feed her through mouth she accepted a spoonful of water, some sugar and
mashed banana. She also licked the sugar and banana paste sticking on her upper
lips and swallowed it. She would get disturbed when many people entered her
room, but she appeared to calm down when she was touched or caressed gently.
Shanbaug meets most of the criteria for being in a permanent vegetative state
which has resulted for 37 years. However, her dementia has not progressed and
has remained stable for many years.
the above examination by the team of doctors, it cannot be said that Aruna Shanbaug
is dead. Whatever the condition of her cortex, her brain stem is certainly
alive. She does not need a heart--lung machine. She breathes on her own without
the help of a respirator. She digests food, and her body performs other involuntary
function without any help. From the CD (which we had screened in the courtroom
on 2.3.2011 in the presence of counsels and others) it appears that she can
certainly not be called dead. She was making some sounds, blinking, eating food
put in her mouth, and even licking with her tongue morsels on her mouth.
there appears little possibility of her coming out of PVS in which she is in. In
all probability, she will continue to be in the state in which she is in till
her death. The question now is whether her life support system (which is done
by feeding her) should be withdrawn, and at whose instance? WITHDRAWAL OF LIFE SUPPORT
OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)
is no statutory provision in our country 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. We agree with Mr. Andhyarujina that passive euthanasia
should be permitted in our country in certain situations, and we disagree with
the learned Attorney General that it should never be permitted. Hence, following
the technique used in Vishakha's case (supra), we are laying down the law in this
connection which will continue to be the law until Parliament makes a law on the
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 bona fide in
the best interest of the patient. In the present case, we have already noted that
Aruna Shanbaug's parents are dead and other close relatives are not interested in
her ever since she had the unfortunate assault on her. As already noted above,
it is the KEM hospital staff, who have been amazingly caring for her day and
night for so many long years, who really are her next friends, and not Ms.
Pinky 100 Virani who has only visited her on few occasions and written a book
Hence it is for the
KEM hospital staff to take that decision. The KEM hospital staff have clearly
expressed their wish that Aruna Shanbaug should be allowed to live. Mr. Pallav Shisodia,
learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted
that Ms. Pinky Virani has no locus standi in this case. In our opinion it is
not necessary for us to go into this question since we are of the opinion that
it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug. We
do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish
to express our appreciation of the splendid social spirit she has shown. We
have seen on the internet that she has been espousing many social causes, and
we hold her in high esteem. All that we wish to say is that however much her
interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital
staff who have been taking care of Aruna day and night for 38 years.
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. (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 Court concerned
as laid down in Airedale's case (supra). 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.
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. Considering
the low ethical levels prevailing in our society today and the rampant commercialization
and corruption, we cannot rule out the possibility that unscrupulous persons
with 102 the help of some unscrupulous doctors may fabricate material to show
that it is a terminal case with no chance of recovery. There are doctors and doctors.
While many doctors are upright, there are others who can do anything for money (see
George Bernard Shaw's play `The Doctors Dilemma'). The commercialization of our
society has crossed all limits.
Hence we have to
guard against the potential of misuse (see Robin Cook's novel `Coma'). In our
opinion, 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, we cannot leave it entirely
to their discretion whether to discontinue the life support or not. We agree
with the decision of the Lord Keith in Airedale's case (supra) that the approval
of the High Court should be taken in this connection. This is in the interest
of the protection of the patient, protection of the doctors, relative and next
friend, and for reassurance of the patient's family as well as the public. This
is also in consonance with the doctrine of parens patriae which is a well known
principle of law. DOCTRINE OF PARENS PATRIAE
doctrine of Parens Patriae (father of the country) had originated in British law
as early as the 13th century. It implies that the King is the 103 father of the
country and is under obligation to look after the interest of those who are unable
to look after themselves. The idea behind Parens Patriae is that if a citizen
is in need of someone who can act as a parent who can make decisions and take
some other action, sometimes the State is best qualified to take on this role.
the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of
India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained
in some details as follows : "In the "Words and Phrases" Permanent
Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power
and authority of a legislature to provide protection to the person and property
of persons non sui juris, such as minor, insane, and incompetent persons, but
the words parens patriae meaning thereby `the father of the country', were
applied originally to the King and are used to designate the State referring to
its sovereign power of guardianship over persons under disability. Parens patriae
jurisdiction, it has been explained, is the right of the sovereign and imposes a
duty on the sovereign, in public interest, to protect persons under disability who
have no rightful protector. The connotation of the term parens patriae differs from
country to country, for instance, in England it is the King, in America it is the
people, etc. The government is within its duty to protect and to control persons
under disability". 104 The duty of the King in feudal times to act as
parens patriae (father of the country) has been taken over in modern times by
Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme
Court observed : "the State has a legitimate interest under its parens patriae
powers in providing care to its citizens who are unable to care for
State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew
observed : " The Court also is `state' within the meaning of Article 12
(of the Constitution).".
our opinion, in the case of an incompetent person who is unable to take a
decision whether to withdraw life support or not, it is the Court alone, as parens
patriae, which ultimately must take this decision, though, no doubt, the views
of the near relatives, next friend and doctors must be given due weight. UNDER WHICH
PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT
TO AN INCOMPETENT PERSON 105
our opinion, it is the High Court under Article 226 of the Constitution which
can grant approval for withdrawal of life support to such an incompetent
person. Article 226(1) of the Constitution states : "Notwithstanding anything
in article 32, every High Court shall have power, throughout the territories in
relation to which it exercises 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,
prohibition, 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".
bare perusal of the above provisions shows that the High Court under Article
226 of the Constitution is not only entitled to issue writs, but is also
entitled to issue directions or orders.
Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this Court observed : "This
article is couched in comprehensive phraseology and it ex facie confers a wide
power on the High Courts to reach injustice wherever it is found. The
Constitution designedly used a wide language in describing the nature of the power,
the purpose for which and the person or authority against whom it can be
exercised. It can issue writs in the nature of prerogative writs as understood
in England; but the scope of those writs also is widened by the use of the
expression "nature", for the said expression does not equate the
writs that can be issued in India with those in England, but only draws an
analogy from them. 106 That apart, High Courts can also issue directions,
orders or writs other than the prerogative writs. It enables the High Courts to
mould the reliefs to meet the peculiar and complicated requirements of this country.
Any attempt to equate the scope of the power of the High Court under Art. 226 of
the Constitution with that of the English Courts to issue prerogative writs is to
introduce the unnecessary procedural restrictions grown over the years in a comparatively
small country like England with a unitary form of Government to a vast country
like India functioning under a federal structure."
above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs.
V. R. Rudani AIR 1989 SC 1607 (vide para 18).
doubt, the ordinary practice in our High Courts since the time of framing of
the Constitution in 1950 is that petitions filed under Article 226 of the
Constitution pray for a writ of the kind referred to in the provision. However,
from the very language of the Article 226, and as explained by the above
decisions, a petition can also be made to the High Court under Article 226 of the
Constitution praying for an order or direction, and not for any writ. Hence, 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/hospital staff praying for permission to withdraw the life
support to an incompetent person of the kind above mentioned. 107 PROCEDURE TO BE
ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED
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. For
this purpose a panel of doctors in every city may be prepared by the High Court
in consultation with the State Government/Union Territory and their fees for this
purpose may be fixed.
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.
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 108 his/her next friend, and supply a copy
of the report of the doctor's 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
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.
High Court should give its decision assigning specific reasons in accordance
with the principle of `best interest of the patient' laid down by the House of Lords
in Airedale's case (supra). 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 shall not be summary in nature.
these observations, this petition is dismissed.
parting with the case, we would like to express our gratitude to Mr. Shekhar Naphade,
learned senior counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya
Jain and Mr. Vimal Chandra S. Dave, 109 advocates, the learned Attorney General
for India Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr.
T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus
curiae assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior
counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates
for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of
Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair,
advocates, who were of great assistance to us. We wish to express our appreciation
of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research Assistant of one of
us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who is Law-Clerk-cum-Research
Assistant of Hon'ble Justice Gyan Sudha Mishra. We also wish to mention the
names of Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law
students in the School of Excellence, Dr. B.R. Ambedkar Law University,
Chennai, who were the interns of one of us (Katju, J.) and who were of great
help in doing research in this case.
wish to commend the team of doctors of Mumbai who helped us viz. Dr. J. V. Divatia,
Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial
Hospital, Mumbai; Dr. Roop 110 Gursahani, Consultant Neurologist at P.D.
Hinduja, Mumbai; and Dr. Nilesh Shah, Professor and Head, Department of Psychiatry
at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. They
did an excellent job.
also wish to express our appreciation of Ms. Pinki Virani who filed this
petition. Although we have dismissed the petition for the reasons given above,
we regard her as a public spirited person who filed the petition for a cause
she bona fide regarded as correct and ethical. We hold her in high esteem.
also commend the entire staff of KEM Hospital, Mumbai (including the retired
staff) for their noble spirit and outstanding, exemplary and unprecedented dedication
in taking care of Aruna for so many long years. Every Indian is proud of them.
(Gyan Sudha Misra)