Law Maker

Aruna Ramachandra Shanbaug v. Union of India

Supreme Court of India · 7 March 2011 · 2 judges

Overruled in whole or in part by Common Cause v. Union of India (2018), which says: “The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.”

The Court held active euthanasia unlawful but allowed passive euthanasia, laid down a High Court approval procedure for withdrawing life support from incompetent patients until Parliament legislates, and dismissed the petition to stop the petitioner's feeding.

Facts

The petitioner, a staff nurse at King Edward Memorial (KEM) Hospital, Mumbai, was assaulted in the hospital in November 1973 and suffered brain damage from strangulation. For about 37 years she lay in KEM Hospital, cared for by its staff. Ms. Pinki Virani, claiming to be her next friend, filed a writ petition under Article 32 alleging that she was in a permanent vegetative state and virtually dead, and praying that the hospital be directed to stop feeding her. The Dean's affidavit said she accepted food and responded with sounds and facial expressions. To resolve the variance, the Court appointed a team of three doctors, who examined her and reported. The Union of India opposed any withdrawal of food or treatment; the amicus curiae supported passive euthanasia if the decision was taken by responsible doctors; KEM Hospital disputed Ms. Virani's standing, and its staff wished the patient to live.

Questions before the Court

  1. Is euthanasia, active or passive, permissible in India, and what did Gian Kaur decide on this?
  2. Could the petitioner be regarded as dead?
  3. Who may decide to withdraw life support from a person in a permanent vegetative state or otherwise incompetent, and what procedure must be followed?

What the Court held

  • Gian Kaur held only that Rathinam was wrong in reading a right to die into Article 21; it expressed no final view on physician assisted termination of life. Active euthanasia is illegal in India, a crime under Section 302 or at least Section 304 IPC, and physician assisted suicide is abetment under Section 306 IPC.
  • The distinction between active euthanasia (doing something to end life) and passive euthanasia (withholding or withdrawing treatment that would preserve life) is valid. Passive euthanasia should be permitted in certain situations, rejecting the Attorney General's view that it should never be allowed.
  • On the doctors' report the petitioner was not dead: her brain stem functioned, she breathed unaided and digested food. She met most criteria of a permanent vegetative state, with little possibility of recovery.
  • Until Parliament legislates, a bona fide decision in the patient's best interest to withdraw life support may be taken by parents, spouse, close relatives, a next friend or attending doctors, but it requires approval of the High Court under Article 226, which acts as parens patriae.
  • The Chief Justice of the High Court is to constitute a Bench of at least two Judges, which must obtain the report of three doctors (preferably a neurologist, a psychiatrist and a physician), give notice to the State and close relatives, and decide speedily with reasons on the best interest of the patient.
  • The KEM Hospital staff, not Ms. Virani, were the petitioner's real next friend; they wished her to live, so the petition was dismissed. The Court also recommended that Parliament consider deleting Section 309 IPC.

Why it matters

The judgment draws the distinction between active and passive euthanasia in Indian law, holds active euthanasia unlawful and permits passive euthanasia for incompetent patients subject to approval by a High Court under Article 226 as parens patriae. Using the Vishaka technique, it lays down a procedure that is to operate as law until Parliament enacts legislation, and it reads Gian Kaur as deciding only that there is no right to die under Article 21.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”
Markandey Katju, J.Page 99 of the judgment
“(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.”
Markandey Katju, J.Page 101 of the judgment
“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.”
Markandey Katju, J.Page 104 of the judgment
“As 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).”
Markandey Katju, J.Page 42 of the judgment

Provisions interpreted

Related judgments

  • Explains Gian Kaur v. State of Punjab (1996)“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.” (page 32)
  • Follows Vishaka v. State of Rajasthan (1997)“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.” (page 99)

Case and bench

Parties
Aruna Ramchandra Shanbaug v. Union of India
Case
Writ Petition (Criminal) No. 115 of 2009
Decided
7 March 2011
Bench
Markandey Katju, Gyan Sudha Misra
Opinions
Judgment of the Court delivered by Markandey Katju, J., signed also by Gyan Sudha Misra, J. No separate opinion.