Euthanasia: SC Laid down procedure until Parliament makes legislation on the subject of euthanasia

That in the Writ Petition filed u/s 32 of Constitution of India, for prayer to grant of Euthnasia, Justice Markandeya Katju of Supreme Court as stated by himself in the judgement {reported at (2011) 4 SCC 454} could have dismissed the said writ petition summarily on the short ground that under Article 32 of the Constitution (unlike Article 226) the petitioner has to prove violation of a fundamental right as it has been held by the Constitution Bench decision of Hon'ble Supreme Court in the case of Gian Kaur vs. State of Punjab reported at 1996 (2) SCC 648 (vide paragr aphs 22 and 23) that the right to life guaranteed by Article 21 under Constitution of India does not include the right to die. Accordingly the petitioner has not shown any violation of any of her fundamental rights for which the present Writ Petition under Article 32 of the Constitution of India is filed. In spite of this Justice Katju goes on the decide the matter on merit and lays down certain guidelines by giving detailed judgment of more than 35 pages and after discussing various legal as well as medical scenario.

In general term Euthanasia is the termination of a very sick person's life in order to relieve them of their suffering. In most cases euthanasia is carried out because the person who dies asks for it, but there are cases called euthanasia where a person can't make such a request and hence such request is done by the next friend of the sufferer as in this case.

There are mainly two types of Euthanasia i.e. to say active and passive euthanasia. 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. It was discussed and held in the judgement after relying many Foreign Judgement and medical experts opinion thatpassive euthanasia (withdrawal of life support of a patient in permanent vegetative state ) was permitted to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years. Though it is categorically held that discontinuing of life support system had to be taken either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision could be taken even by a person or a body of persons acting as a next friend including doctors attending the patient and it was categorically held that it is Court alone who has power to take final decision as to whether or not allow Euthanasia or not as principle of parens patriae.

It was further held that however, injecting a deadly drug to a person who was being kept alive only mechanically, through life support systems and had been in that condition for many years remains illegal and a crime under S. 302 or at least S. 304 IPC and further even a Physician assisted suicide is a crime under S. 306 IPC.

In facts dismissing the petition filed by the best friend of petitioner as it was the case of Active Euthanasia and not Passive Euthanasia Supreme Court laid down procedure to be followed all over the India until Parliament comes out with a piece of legislation in the subject matter. Supreme Court held than when an euthanasia petition is filed before the High Court, the Chief Justice of the HC should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. That the Division Bench of the High Court 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 and Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician.

The 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 HC. Simultaneously with appointing the committee of doctors, the HC should also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it was available - After hearing them, and going through the report submitted by the expert committee thoroughly the HC should give its verdict.

What was more praise worthy about the judgement is the credit and acknowledgemnt given by the Justice Katju in the concluding part to number of people including lawyers, law clerks, doctors, professors who paid a pivotal role in assisting the court to come to the decision which is not normally seen. Further Court also expressed their appreciation to the petitioner named Ms. Pinki Virani and kept her in high esteem who filed this petition by observing that although court have dismissed the petition Court regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical.

Relevant finding of the court is as under:-

“WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)

126. There 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 subject.

(i) 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 Virani who has only visited her on few occasions and written a book on her. 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. However, 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. (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.

127. 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. 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 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

128. The 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 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.

129. In 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". 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 the State.

130. In 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 themselves".

131. In 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).".

132. In 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

133. In 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".

134. A 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.

135. In 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.
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."

136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).

137. No 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.”

Entire Judgment can be read here.