SC allows passive euthanasia, rejects Aruna's plea

New Delhi, Mar 7 (PTI) In a path-breaking judgement,
the Supreme Court on Monday allowed "passive euthanasia" of
withdrawing life support to patients in permanently vegetative
state(PVS) but rejected outright active euthanasia of
ending life through administration of lethal substances.
Refusing mercy killing of Aruna Shanbaug, lying in a
vegetative state for 37 years in a Mumbai hospital, a two-
judge bench of justices Markandeya Katju and Gyan Sudha
Mishra, laid a set of tough guidelines under which passive
euthanasia can be legalised through high court monitored
mechanism.
The apex court while framing the guidelines for
passive euthanasia asserted that it would now become the law
of the land until Parliament enacts a suitable legislation to
deal with the issue.
The bench also asked Parliament to delete Section 309
IPC (attempt to suicide) as it has become "anachronistic
though it has become Constitutionally valid."
"A person attempts suicide in a depression, and hence
he needs help, rather than punishment," Justice Katju writing
the judgement said.
The apex court said though there is no statutory
provision for withdrawing life support system from a person in
permanently vegetative state, it was of the view that "passive
euthanasia" could be permissible in certain cases for which it
laid down guidelines and cast the responsibility on high
courts to take decisions on pleas for mercy killings.
"We agree with senior counsel T R Andhyarujina (who
assisted the court in the matter) that passive euthanasia
should be permitted in our country in certain situations, and
we disagree with Attorney General (G E Vahanvati) that it
should never be permitted," said the bench.
While dismissing writer Pinky Virani's plea for
subjecting to mercy killing of the KEM Hospital nurse who was
sexually assaulted by a ward boy, the apex court cast the
responsibility of taking a call on passive euthanasia on high
courts, if the plea is made by close relatives or friends who
have strongly opposed such a step.
The bench, in its 141-page ruling, said in the case
of Aruna, the plea for her mercy killing could be permitted if
the Mumbai King Edward Hospital makes it to the Bombay High
Court on her behalf and the high court accepts it.
"A decision has to be taken to discontinue life
support either by the parents or the spouse or other close
relatives, or in the absence of any of them, such a decision
can be taken even by a person or a body of persons acting as a
next friend," it added.
"It can also be taken by the doctors attending the
patient. However, the decision should be taken bona fide in
the best interest of the patient," and should be approved by
the high court, it said.
In the case of nurse Aruna "it is for the KEM hospital
staff to take that decision," and not writer Pinky Virani, the
bench said , adding that "the hospital staff have been
amazingly caring for her day and night for so many long years,
who really are her next friends, and not Ms. Pinky Virani."
"Hence it is for the KEM hospital staff to take that
decision. And the KEM hospital staff have clearly expressed
their wish that Aruna Shanbaug should be allowed to live," the
bench said, rejecting the plea for Aruna's mercy killing at
present.
"Assuming that the KEM hospital staff at some future
time changes its mind, in our opinion in such a situation the
KEM hospital would have to apply to the Bombay High Court for
approval of the decision to withdraw life support," the bench
said.
Laying down the law on the issue, the bench added that
"even if a decision is taken by the near relatives or doctors
or next friend to withdraw life support, such a decision
requires approval from the high court concerned."
"In our opinion, this is even more necessary in our
country as we cannot rule out the possibility of mischief
being done by relatives or others for inheriting the property
of the patient," it said.
"In our opinion, if we leave it solely to the
patient's relatives or to the doctors or next friend to decide
whether to withdraw the life support of an incompetent person
there is always a risk in our country that this may be misused
by some unscrupulous persons who wish to inherit or otherwise
grab the property of the patient," it said.
The bench held that it's only the high court which has
the power under the Article 226 of the Constitution to decide
the plea for mercy killings.
"In our opinion, Article 226 gives abundant power to
the high court to pass suitable orders on the application
filed by the near relatives or next friend or the doctors or
hospital staff praying for permission to withdraw the life
support to an incompetent person like Aruna," the bench said.
While holding high courts to be constitutionally
empowered to take calls on pleas for euthanasia, the bench
also laid down a detailed procedure for them on how to deal
with such pleas.
It said the chief justices of the high courts, on
receipt of an euthanasia plea, would forthwith constitute a
bench to decide it. The bench in turn would appoint a
committee of at least three renowned doctors to advise them on
the matter.
The bench said the high court should also seek the
stands of various stakeholders to the plea including the
relatives, next friends state etc to examine it and decide the
matter as expeditiously as possible.
"The high court should give its decision speedily at
the earliest, since delay in the matter may result in causing
great mental agony to the relatives and persons close to the
patient," the bench said, adding that the decision should be
given with "specific reasons in accordance with the principle
of 'best interest of the patient' laid down by the House of
Lords in Airedale's case."
"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," the bench added.
The bench gave its ruling after examining a plethora
of judicial verdicts and legal position on the issue across
the globe, specially UK, USA and its various states, including
Washington, Montana and Oregon, Canada, Belgium, Netherlands,
Switzerland, Germany France, Spain Austria, etc.
The plea had been made by writer Pink Virani on behalf
of Aruna, who slipped into coma after a brutal attack on her
at Mumbai's King Edward Memorial Hospital by a staffer on
November 27, 1973.
As per the plea, she had slipped into coma after she
was attacked by the sweeper who wrapped a dog chain around her
neck and yanked the victim with it.
According to the petition, he had tried to rape the
victim but finding that she was menstruating, indulged in anal
sex. To immobilise her during this act, he twisted the chain
around her neck and fled the scene after committing the
heinous offence, it had said.
Virani had said that due to strangulation by the
chain, the supply of oxygen to the brain stopped and the
cortex got damaged. She also had brain stem contusion injury
associated with cervical cord injury.
According to the petitioner, in the last 37 years
after the incident, Aruna has become "featherweight" and her
bones are brittle. She is prone to bed sores.
Her wrists are twisted inward, teeth decayed and she
can only be given mashed food on which she survives, Virani
had said, adding that Aruna is in a persistent vegetative
state, her brain is virtually dead and she is oblivious to the
outside world.
She can neither see nor hear anything nor can she
express herself or communicate in any manner, whatsoever, she
had said in her plea for Aruna's mercy killing.