{"id":186203,"date":"2011-03-07T00:00:00","date_gmt":"2011-03-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aruna-ramchandra-shanbaug-vs-union-of-india-ors-on-7-march-2011"},"modified":"2015-08-06T06:19:05","modified_gmt":"2015-08-06T00:49:05","slug":"aruna-ramchandra-shanbaug-vs-union-of-india-ors-on-7-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aruna-ramchandra-shanbaug-vs-union-of-india-ors-on-7-march-2011","title":{"rendered":"Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011<\/div>\n
Bench: Markandey Katju, Gyan Sudha Misra<\/div>\n
                                                                                                      1\n\n\n\n                                                                               REPORTABLE\n\n\n                           IN THE SUPREME COURT OF INDIA\n\n\n                           CRIMINAL ORIGINAL JURISDICTION\n\n\n                  WRIT PETITION (CRIMINAL) NO. 115 OF 2009\n\n\n\n\nAruna Ramchandra Shanbaug                                     ..             Petitioner\n\n\n               -versus-\n\n\nUnion of India and others                                     ..        Respondents\n\n\n\n\n                                        J U D G M E N T\n<\/pre>\n
Markandey Katju, J.\n<\/p>\n<\/p>\n
       “Marte hain aarzoo mein marne ki<\/p>\n
       Maut aati hai par nahin aati”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                               —  Mirza Ghalib<\/p>\n<\/blockquote>\n
1.     Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, <\/p>\n
learned   Attorney   General   for   India   for   the   Union   of   India   Mr.   Vahanvati, <\/p>\n
Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as <\/p>\n
amicus   curiae,  Mr.   Pallav   Sisodia,   learned   senior   counsel   for   the   Dean, <\/p>\n
KEM   Hospital,   Mumbai,   and   Mr.   Chinmay   Khaldkar,   learned   counsel   for <\/p>\n
the State of Maharashtra.\n<\/p><\/blockquote>\n
\n                                                                                              2<\/span><\/p>\n<\/blockquote>\n
2.      Euthanasia is one of the most perplexing issues which the courts and <\/p>\n
legislatures all over the world are facing today. This Court, in this case, is <\/p>\n
facing the same issue, and we feel like a ship in an uncharted sea, seeking <\/p>\n
some   guidance   by   the   light   thrown   by   the   legislations   and   judicial <\/p>\n
pronouncements of foreign countries, as well as the submissions of learned <\/p>\n
counsels before us.  The case before us is a writ petition under Article 32 of <\/p>\n
the   Constitution,   and   has   been   filed   on   behalf   of   the   petitioner   Aruna <\/p>\n
Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be <\/p>\n
a next friend.\n<\/p>\n<\/p>\n
3.      It is stated in the writ petition that the petitioner Aruna Ramachandra <\/p>\n
Shanbaug   was   a   staff   Nurse   working   in   King   Edward   Memorial   Hospital, <\/p>\n
Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by <\/p>\n
a   sweeper   in   the   hospital   who   wrapped   a   dog   chain   around   her   neck   and <\/p>\n
yanked   her   back   with   it.   He   tried   to   rape   her   but   finding   that   she   was <\/p>\n
menstruating,   he   sodomized   her.   To   immobilize   her   during   this   act   he <\/p>\n
twisted the chain around her neck. The next day on 28th November, 1973 at <\/p>\n
7.45 a.m. a cleaner  found her lying on the floor with blood all over in an <\/p>\n
unconscious   condition.   It   is   alleged   that   due   to   strangulation   by   the   dog <\/p>\n
chain the supply of oxygen to the brain stopped and the brain got damaged. <\/p>\n
It is alleged that the Neurologist in the Hospital found that she had plantars’ <\/p>\n
                                                                                               3<\/span><\/p>\n
extensor,   which   indicates   damage   to   the   cortex   or   some   other   part   of   the <\/p>\n
brain. She also had brain stem contusion injury with associated cervical cord <\/p>\n
injury. It is alleged at page 11 of the petition that 36 years have expired since <\/p>\n
the   incident   and   now   Aruna   Ramachandra   Shanbaug   is   about   60   years   of <\/p>\n
age. She is featherweight, and her brittle bones could break if her hand or leg <\/p>\n
are   awkwardly   caught,   even   accidentally,   under   her   lighter   body.   She   has <\/p>\n
stopped menstruating and her skin is now like papier mache’ stretched over a <\/p>\n
skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth <\/p>\n
had decayed causing her immense pain. She can only be given mashed food, <\/p>\n
on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in <\/p>\n
a persistent negetative state (p.v.s.) and virtually a dead person and has no <\/p>\n
state of awareness, and her brain is virtually dead. She can neither see, nor <\/p>\n
hear anything nor can she  express herself  or communicate,  in any  manner <\/p>\n
whatsoever.   Mashed   food   is   put   in   her   mouth,   she   is   not   able   to   chew   or <\/p>\n
taste any food. She is not even aware that food has been put in her mouth. <\/p>\n
She is not able to swallow any liquid food, which shows that the food goes <\/p>\n
down on its own and not because of any effort on her part. The process of <\/p>\n
digestion goes on in this way as the mashed food passes through her system. <\/p>\n
However,   Aruna   is   virtually   a   skeleton.   Her   excreta   and   the   urine   is <\/p>\n
discharged on the bed itself. Once in a while she is cleaned up but in a short <\/p>\n
                                                                                            4<\/span><\/p>\n
while again she goes back into the same sub-human condition.   Judged by <\/p>\n
any parameter, Aruna cannot be said to be a living person and it is only on <\/p>\n
account of mashed food which is put into her mouth that there is a facade of <\/p>\n
life which is totally devoid of any human element. It is alleged that there is <\/p>\n
not   the   slightest   possibility   of   any   improvement   in   her   condition   and   her <\/p>\n
body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and <\/p>\n
this has been the position for the last 36 years. The prayer of the petitioner is <\/p>\n
that   the   respondents   be   directed   to   stop   feeding   Aruna,   and   let   her   die <\/p>\n
peacefully.\n<\/p>\n<\/p>\n
4.      We could have dismissed this petition on the short ground that under <\/p>\n
Article 32 of the Constitution of India (unlike Article 226) the petitioner has <\/p>\n
to   prove   violation   of   a   fundamental   right,   and   it   has   been   held   by   the <\/p>\n
Constitution   Bench   decision   of   this   Court   in  Gian   Kaur    vs.    State   of <\/p>\n
Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life <\/p>\n
guaranteed by Article 21 of the Constitution does not include the right to die. <\/p>\n
Hence   the   petitioner   has   not   shown   violation   of   any   of   her   fundamental <\/p>\n
rights.     However,   in   view   of   the   importance   of   the   issues   involved   we <\/p>\n
decided to go deeper into the merits of the case.<\/p>\n
                                                                                             5<\/span><\/p>\n
5.     Notice   had   been   issued   by   this   Court   on   16.12.2009   to   all   the <\/p>\n
respondents in this petition.   A counter affidavit was earlier filed on behalf <\/p>\n
of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the <\/p>\n
Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the <\/p>\n
said hospital, stating in paragraph 6 that Aruna accepts the food in normal <\/p>\n
course   and   responds   by   facial   expressions.   She   responds   to   commands <\/p>\n
intermittently  by  making sounds.  She  makes  sounds  when  she  has  to pass <\/p>\n
stool and urine which the nursing staff identifies and attends to by leading <\/p>\n
her to the toilet. Thus, there was some variance between the allegations in <\/p>\n
the writ petition and the counter affidavit of Dr. Pazare. <\/p>\n
6.     Since   there   was   some   variance   in   the   allegation   in   the   writ   petition <\/p>\n
and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, <\/p>\n
2011   appointed   a   team   of   three   very   distinguished   doctors   of   Mumbai   to <\/p>\n
examine Aruna Shanbaug thoroughly and submit a report about her physical <\/p>\n
and mental condition.  These three doctors were :<\/p>\n
       (1)     Dr. J. V. Divatia, Professor and Head, Department of <\/p>\n
               Anesthesia, Critical Care and Pain at Tata Memorial <\/p>\n
               Hospital, Mumbai;\n<\/p><\/blockquote>\n
\n       (2)     Dr. Roop Gursahani, Consultant Neurologist at P.D.<\/p>\n<\/blockquote>\n
               Hinduja, Mumbai; and<\/p>\n
                                                                                    6<\/span><\/p>\n
      (3)    Dr. Nilesh Shah, Professor and Head, Department of <\/p>\n
             Psychiatry at Lokmanya Tilak Municipal Corporation<\/p>\n
             Medical College and General Hospital.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
7.    In pursuance of our order dated 24th January, 2011, the team of three <\/p>\n
doctors above mentioned examined Aruna Shanbuag in KEM Hospital and <\/p>\n
has submitted us the following report:\n<\/p>\n<\/p>\n
      ” Report of Examination of Ms. Aruna Ramachandra Shanbaug <\/p>\n
      Jointly prepared and signed by <\/p>\n<\/blockquote>\n
      1. Dr. J.V. Divatia <\/p>\n
      (Professor and Head, Department of Anesthesia, Critical Care <\/p>\n
      and Pain, at Tata Memorial Hospital, Mumbai) <\/p>\n<\/blockquote>\n
      2. Dr. Roop Gursahani <\/p>\n
      (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) <\/p>\n<\/blockquote>\n
      3. Dr. Nilesh Shah <\/p>\n
      (Professor and Head, Department of Psychiatry at Lokmanya <\/p>\n
      Tilak Municipal Corporation Medical College and General <\/p>\n
      Hospital).\n<\/p><\/blockquote>\n
\n      I. Background <\/p>\n
                     As per the request of Hon. Justice Katju and Hon. <\/p>\n
             Justice Mishra of the Supreme Court of India, Ms. Aruna <\/p>\n
             Ramachandra   Shanbaug,   a   60-year-old   female   patient <\/p>\n
             was   examined   on   28th   January   2011,   morning   and   3rd <\/p>\n
             February 2011, in the side-room of ward-4, of the K. E. <\/p>\n
             M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia <\/p>\n
             (Professor and Head, Department of Anesthesia, Critical <\/p>\n
             Care and Pain at Tata Memorial Hospital, Mumbai), Dr. <\/p>\n
             Roop Gursahani (Consultant Neurologist at P.D. Hinduja <\/p>\n
             Hospital,   Mumbai)   and   Dr.   Nilesh   Shah   (Professor   and <\/p>\n
             Head,   Department   of   Psychiatry   at   Lokmanya   Tilak <\/p>\n
                                                                                  7<\/span><\/p>\n
      Municipal   Corporation   Medical   College   and   General <\/p>\n
      Hospital).\n<\/p><\/blockquote>\n
<\/blockquote>\n
               This   committee   was   set   up   because   the   Court <\/p>\n
      found some variance between the allegations in the writ <\/p>\n
      petition   filed   by   Ms.   Pinki   Virani   on   behalf   of   Aruna <\/p>\n
      Ramchandras Shanbaug and the counter affidavit of Dr. <\/p>\n
      Pazare.   This   team   of   three   doctors   was   appointed   to <\/p>\n
      examine   Aruna   Ramachandra   Shanbaug   thoroughly   and <\/p>\n
      give a report to the Court about her physical and mental <\/p>\n
      condition <\/p>\n
               It was felt by the team of doctors appointed by the <\/p>\n
      Supreme   Court   that   longitudinal   case   history   and <\/p>\n
      observations   of   last   37   years   along   with   findings   of <\/p>\n
      examination will give a better, clear and comprehensive <\/p>\n
      picture of the patient’s condition.\n<\/p><\/blockquote>\n
\n      This report is based on:\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      1. The longitudinal case history and observations <\/p>\n
      obtained from the Dean and the medical and nursing staff <\/p>\n
      of K. E. M. Hospital, <\/p>\n<\/blockquote>\n
      2. Case records (including nursing records) since January <\/p>\n
      2010 <\/span><\/p>\n<\/blockquote>\n
      3.   Findings   of   the   physical,   neurological   and   mental <\/p>\n
      status examinations performed by the panel. <\/p><\/blockquote>\n
      4.   Investigations   performed   during   the   course   of   this <\/p>\n
      assessment            (Blood          tests,         CT          head, <\/p>\n
      Electroencephalogram) <\/p>\n
 II. Medical history <\/p>\n
               Medical   history   of   Ms.   Aruna   Ramachandra <\/p>\n
      Shanbaug was obtained from the Dean, the Principal  of <\/p>\n
      the School of Nursing and the medical and nursing staff <\/p>\n
      of ward-4 who has been looking after her.\n<\/p>\n
\n                                                                               8<\/span><\/p>\n
        It was learnt from the persons mentioned above that <\/p>\n
1.   Ms.   Aruna   Ramachandra   Shanbaug   was   admitted   in <\/p>\n
the hospital after she was assaulted and strangulated by a <\/p>\n
sweeper of the hospital on November 27, 1973.\n<\/p>\n<\/p>\n
2. Though she survived, she never fully recovered from <\/p>\n
the   trauma   and   brain   damage   resulting   from  the   assault <\/p>\n
and strangulation.\n<\/p>\n<\/p>\n
3. Since last so many years she is in the same bed in the <\/p>\n
side-room of ward-4.\n<\/p>\n<\/p>\n
4.   The   hospital   staff   has   provided   her   an   excellent <\/p>\n
nursing   care   since   then   which   included   feeding   her   by <\/p>\n
mouth,   bathing   her   and   taking   care   of   her   toilet   needs. <\/p>\n
The care was of such an exceptional nature that she has <\/p>\n
not developed a single bed-sore or fracture in spite of her <\/p>\n
bed-ridden state since 1973.\n<\/p>\n<\/p>\n
5. According to the history from them, though she is not <\/p>\n
very   much   aware   of   herself   and   her   surrounding,   she <\/p>\n
somehow   recognizes   the   presence   of   people   around   her <\/p>\n
and expresses her like or dislike by making certain types <\/p>\n
of   vocal   sounds   and   by   waving   her   hands   in   certain <\/p>\n
manners.  She appears to be happy and smiles  when she <\/p>\n
receives   her   favorite   food   items   like   fish   and   chicken <\/p>\n
soup. She accepts feed which she likes but may spit out <\/p>\n
food   which   she   doesn’t   like.   She   was   able   to   take   oral <\/p>\n
feeds   till   16th   September   2010,   when   she   developed   a <\/p>\n
febrile   illness,   probably   malaria.   After   that,   her   oral <\/p>\n
intake   reduced   and   a   feeding   tube   (Ryle’s   tube)   was <\/p>\n
passed   into   her   stomach   via   her   nose.   Since   then   she <\/p>\n
receives her major feeds by the Ryle’s tube, and is only <\/p>\n
occasionally able to accept the oral liquids. Malaria has <\/p>\n
taken a toll in her physical condition but she is gradually <\/p>\n
recuperating from it.\n<\/p>\n<\/p>\n
6. Occasionally, when there are many people in the room <\/p>\n
she   makes   vocal   sounds   indicating   distress.   She   calms <\/p>\n
down when people move out of her room. She also seems <\/p>\n
                                                                                    9<\/span><\/p>\n
      to enjoy the devotional songs and music which is played <\/p>\n
      in her room and it has calming effect on her.\n<\/p>\n<\/p>\n
        7. In an annual ritual, each and every batch of nursing <\/p>\n
      students   is   introduced   to   Ms.   Aruna   Ramachandra <\/p>\n
      Shanbaug, and is told that “She was one of us”; “She was <\/p>\n
      a very nice and efficient staff nurse but due to the mishap <\/p>\n
      she is in this bed-ridden state”.\n<\/p>\n<\/p>\n
      8.   The   entire   nursing   staff   member   and   other   staff <\/p>\n
      members have a very compassionate attitude towards Ms. <\/p>\n
      Aruna Ramachandra Shanbaug and they all very happily <\/p>\n
      and willingly take care of her. They all are very proud of <\/p>\n
      their achievement of taking such a good care of their bed-<\/p>\n
      ridden colleague and feel very strongly that they want to <\/p>\n
      continue to take care of her in the same manner till she <\/p>\n
      succumbs   naturally.   They   do   not   feel   that   Ms.   Aruna <\/p>\n
      Ramachandra Shanbaug is living a painful and miserable <\/p>\n
      life.\n<\/p>\n
\n III. Examination <\/p>\n
IIIa. Physical examination <\/p>\n
                She   was   conscious,   unable   to   co-operate   and <\/p>\n
      appeared to be unaware of her surroundings.\n<\/p>\n<\/p>\n
                Her body was lean and thin. She appeared neat and <\/p>\n
      clean and lay curled up in the bed with movements of the <\/p>\n
      left hand and made sounds, especially when many people <\/p>\n
      were present in the room.\n<\/p>\n<\/p>\n
                She   was   afebrile,   pulse   rate   was   80\/min,   regular, <\/p>\n
      and   good   volume.   Her   blood   pressure   recorded   on   the <\/p>\n
      nursing charts was normal. Respiratory rate was 15\/min, <\/p>\n
      regular,   with   no   signs   of   respiratory   distress   or <\/p>\n
      breathlessness.\n<\/p>\n<\/p>\n
                There was no pallor, cyanosis, clubbing or icterus. <\/p>\n
      She was edentulous (no teeth).\n<\/p>\n
\n                                                                                    10<\/span><\/p>\n
             Skin   appeared   to   be   generally   in   good   condition, <\/p>\n
     there were no bed sores, bruises or evidence of old healed <\/p>\n
     bed   sores.   There   were   no   skin   signs   suggestive   of <\/p>\n
     nutritional deficiency or dehydration.\n<\/p>\n<\/p>\n
             Her wrists had developed severe contractures, and <\/p>\n
     were   fixed   in   acute   flexion.   Both   knees   had   also <\/p>\n
     developed contractures (right more than left). <\/p>\n
             A   nasogastric   feeding   tube   (Ryles   tube)   was   in <\/p>\n
     situ. She was wearing diapers.\n<\/p>\n<\/p>\n
             Abdominal,   respiratory   and   cardiovascular <\/p>\n
     examination was unremarkable.\n<\/p>\n
\nIIIb. Neurological Examination <\/p>\n
             When examined she was conscious with eyes open <\/p>\n
     wakefulness   but   without   any   apparent   awareness   (see <\/p>\n
     Table 1 for detailed assessment of awareness). From the <\/p>\n
     above   examination,   she  has  evidence   of intact  auditory, <\/p>\n
     visual,   somatic   and   motor   primary   neural   pathways. <\/p>\n
     However   no   definitive   evidence   for   awareness   of <\/p>\n
     auditory, visual, somatic and motor stimuli was observed <\/p>\n
     during our examinations.\n<\/p>\n<\/p>\n
             There   was   no   coherent   response   to   verbal <\/p>\n
     commands  or  to  calling   her  name.   She  did not  turn  her <\/p>\n
     head to the direction of sounds or voices. When roused <\/p>\n
     she   made   non-specific   unintelligible   sounds   (“uhhh, <\/p>\n
     ahhh”) loudly and continuously but was generally silent <\/p>\n
     when undisturbed.\n<\/p>\n<\/p>\n
             Menace   reflex   (blinking   in   response   to   hand <\/p>\n
     movements in front of eyes) was present in both eyes and <\/p>\n
     hemifields   but   brisker   and   more   consistent   on   the   left. <\/p>\n
     Pupillary   reaction   was   normal   bilaterally.   Fundi   could <\/p>\n
     not   be  seen   since   she   closed   her   eyes   tightly   when   this <\/p>\n
     was   attempted.   At   rest   she   seemed   to   maintain <\/p>\n
                                                                                      11<\/span><\/p>\n
     preferential   gaze   to   the   left   but   otherwise   gaze   was <\/p>\n
     random   and   undirected   (roving)   though   largely <\/p>\n
     conjugate. Facial movements were symmetric. Gag reflex <\/p>\n
     (movement   of   the   palate   in   response   to   insertion   of   a <\/p>\n
     tongue depressor in the throat) was present and she does <\/p>\n
     not pool saliva. She could swallow both teaspoonfuls of <\/p>\n
     water as well as a small quantity of mashed banana. She <\/p>\n
     licked though not very completely sugar smeared on her <\/p>\n
     lips, suggesting some tongue control.\n<\/p>\n<\/p>\n
               She   had   flexion   contractures   of   all   limbs   and <\/p>\n
     seemed to be incapable of turning in bed spontaneously. <\/p>\n
     There   was   what   appeared   to   be   minimal   voluntary <\/p>\n
     movement with the left upper limb (touching her wrist to <\/p>\n
     the   eye   for   instance,   perhaps   as   an   attempt   to   rub   it). <\/p>\n
     When   examined\/disturbed,   she   seemed   to   curl   up   even <\/p>\n
     further in her flexed foetal position. Sensory examination <\/p>\n
     was   not   possible   but   she   did   seem   to   find   passive <\/p>\n
     movement   painful   in   all   four   limbs   and   moaned <\/p>\n
     continuously   during   the   examination.   Deep   tendon <\/p>\n
     reflexes   were   difficult   to   elicit   elsewhere   but   were <\/p>\n
     present at the ankles. Plantars were withdrawal\/extensor. <\/p>\n
               Thus neurologically she appears to be in a state of <\/p>\n
     intact          consciousness          without         awareness          of <\/p>\n
     self\/environment.   No   cognitive   or   communication <\/p>\n
     abilities could be discerned. Visual function if present is <\/p>\n
     severely limited. Motor function is grossly impaired with <\/p>\n
     quadriparesis.\n<\/p>\n
\nIIIc. Mental Status Examination <\/p>\n
1. Consciousness, General Appearance, Attitude and Behavior : <\/p>\n
               Ms.   Aruna   Ramachandra   Shanbaug   was   resting <\/p>\n
     quietly in her bed, apparently listening to the devotional <\/p>\n
     music,   when   we   entered   the   room.   Though,   her   body <\/p>\n
     built is lean, she appeared to be well nourished and there <\/p>\n
     were no signs of malnourishment. She appeared neat and <\/p>\n
     clean.   She   has   developed   contractures   at   both   the   wrist <\/p>\n
                                                                                        12<\/span><\/p>\n
      joints   and   knee   joints   and   so   lied   curled   up   in   the   bed <\/p>\n
      with minimum restricted physical movements. <\/p>\n<\/blockquote>\n
                She was conscious but appeared to be unaware of <\/p>\n
      herself and her surroundings. As soon as she realized the <\/p>\n
      presence of some people in her room, she started making <\/p>\n
      repetitive   vocal   sounds   and   moving   her   hands.   This <\/p>\n
      behavior subsided as we left the room. She did not have <\/p>\n
      any involuntary movements. She did not demonstrate any <\/p>\n
      catatonic, hostile or violent behavior. <\/p>\n<\/blockquote>\n
                Her eyes were wide open and from her behavior it <\/p>\n
      appeared   that   she   could   see   and   hear   us,   as   when   one <\/p>\n
      loudly called her name, she stopped making vocal sounds <\/p>\n
      and   hand   movements   for   a   while.   She   was   unable   to <\/p>\n
      maintain sustained eye-to eye contact but when the hand <\/p>\n
      was suddenly taken near her eyes, she was able to blink <\/p>\n
      well.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                When an attempt was made to feed her by mouth, <\/p>\n
      she accepted a spoonful of water, some sugar and mashed <\/p>\n
      banana.   She   also   licked   the   sugar   and   banana   paste <\/p>\n
      sticking   on   her   upper   lips   and   swallowed   it.   Thus,   at <\/p>\n
      times she could cooperate when fed.\n<\/p><\/blockquote>\n
<\/blockquote>\n
2. Mood and affect :\n<\/p>\n<\/p>\n
                It   was   difficult   to   assess   her   mood   as   she   was <\/p>\n
      unable   to   communicate   or   express   her   feelings.   She <\/p>\n
      appeared   to   calm   down   when   she   was   touched   or <\/p>\n
      caressed   gently.   She   did   not   cry   or   laugh   or   expressed <\/p>\n
      any   other   emotions   verbally   or   non-verbally   during   the <\/p>\n
      examination   period.   When   not   disturbed   and   observed <\/p>\n
      quietly from a distance, she did not appear to be in severe <\/p>\n
      pain or misery. Only when many people enter her room, <\/p>\n
      she appears to get a bit disturbed about it. <\/p>\n
                                                                                    13<\/span><\/p>\n<\/blockquote>\n
3. Speech and thoughts :\n<\/p>\n<\/p>\n
                 She   could   make   repeated   vocal   sounds   but   she <\/p>\n
      could   not   utter   or   repeat   any   comprehensible   words   or <\/p>\n
      follow and respond to any of the simple commands (such <\/p>\n
      as “show me your tongue”). The only way she expressed <\/p>\n
      herself   was   by   making   some   sounds.   She   appeared   to <\/p>\n
      have minimal language comprehension or expression. <\/p>\n<\/blockquote>\n
4. Perception :\n<\/p>\n<\/p>\n
                 She   did   not   appear   to   be   having   any   perceptual <\/p>\n
      abnormality   like   hallucinations   or   illusions   from   her <\/p>\n
      behavior.\n<\/p><\/blockquote>\n
<\/blockquote>\n
5. Orientation, memory and intellectual capacity : <\/p>\n
                 Formal   assessment   of   orientation   in   time,   place <\/p>\n
      and   person,   memory   of   immediate,   recent   and   remote <\/p>\n
      events and her intellectual capacity could not be carried <\/p>\n
      out.\n<\/p><\/blockquote>\n
<\/blockquote>\n
6. Insight :\n<\/p>\n<\/p>\n
                 As she does not appear to be fully aware of herself <\/p>\n
      and her surroundings, she is unlikely to have any insight <\/p>\n
      into her illness.\n<\/p><\/blockquote>\n
<\/blockquote>\n
IV. Reports of Investigations <\/p>\n
      IVa. CT Scan Head (Plain) <\/p>\n
                 This   is   contaminated   by   movement   artefacts.   It <\/p>\n
      shows generalized prominence of supratentorial sulci and <\/p>\n
      ventricles   suggestive   of   generalized   cerebral   atrophy. <\/p>\n
      Brainstem   and   cerebellum   seem   normal.   Ischemic   foci <\/p>\n
      are   seen   in   left   centrum   semi-ovale   and   right   external <\/p>\n
      capsule. In addition a small left parieto-occipital cortical <\/p>\n
      lesion is also seen and is probably ischemic.\n<\/p>\n
\n                                                                                      14<\/span><\/p>\n
     IVb. EEG <\/p>\n
             The   dominant   feature   is   a   moderately   rhythmic <\/p>\n
     alpha frequency at 8-10 Hz and 20-70 microvolts which <\/p>\n
     is   widely   distributed   and   is   equally   prominent   both <\/p>\n
     anteriorly   and   posteriorly.   It   is   not   responsive   to   eye-<\/p>\n
     opening   as   seen   on   the  video.   Beta   at   18-25   Hz   is   also <\/p>\n
     seen diffusely but more prominently anteriorly. No focal <\/p>\n
     or paroxysmal abnormalities were noted <\/p>\n
     IVc. Blood <\/p>\n
             Reports of the hemoglobin, white cell count, liver <\/p>\n
     function   tests,   renal   function   tests,   electrolytes,   thyroid <\/p>\n
     function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels <\/p>\n
     are   unremarkable.   (Detailed   report   from   KEM   hospital <\/p>\n
     attached.)<\/p>\n
V. Diagnostic impression <\/p>\n
             1)   From   the   longitudinal   case   history   and <\/p>\n
     examination   it   appears   that   Ms.   Aruna   Ramachandra <\/p>\n
     Shanbaug has developed non-progressive but irreversible <\/p>\n
     brain damage secondary to hypoxic-ischemic brain injury <\/p>\n
     consistent with the known effects of strangulation. Most <\/p>\n
     authorities   consider   a   period   exceeding   4   weeks   in   this <\/p>\n
     condition,   especially   when   due   to   hypoxic-ischemic <\/p>\n
     injury as confirming irreversibility. In Ms. Aruna’s case, <\/p>\n
     this   period   has   been   as   long   as   37   years,   making   her <\/p>\n
     perhaps the longest survivor in this situation. <\/p>\n
             2)   She   meets   most   of   the   criteria   for   being   in   a <\/p>\n
     permanent   vegetative   state   (PVS).   PVS   is   defined   as   a <\/p>\n
     clinical   condition   of   unawareness   (Table   1)   of   self   and <\/p>\n
     environment in which the patient breathes spontaneously, <\/p>\n
     has a stable circulation and shows cycles of eye closure <\/p>\n
     and   opening   which   may   simulate   sleep   and   waking <\/p>\n
     (Table   2).   While   she   has   evidence   of   intact   auditory, <\/p>\n
     visual,   somatic   and   motor   primary   neural   pathways,   no <\/p>\n
     definitive   evidence   for   awareness   of   auditory,   visual, <\/p>\n
                                                                                                            15<\/span><\/p>\n
                  somatic   and   motor   stimuli   was   observed   during   our <\/p>\n
                  examinations.\n<\/p>\n
\n            VI. Prognosis <\/p>\n
                            Her dementia has not progressed and has remained <\/p>\n
                  stable for last many years and it is likely to remain same <\/p>\n
                  over   next   many   years.   At   present   there   is   no   treatment <\/p>\n
                  available for the brain damage she has sustained.<\/p>\n
VII. Appendix <\/p>\n
VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS <\/p>\n
(Wade DT, Johnston C. British Med
\n                                    STI
\n                                        MULUS                              RESPONSE <\/p>\n
Journal 1999; 319:841-844) DOMAIN <\/p>\n
OBSERVED <\/p>\n
AUDITORY AWARENESS                  Sudden loud noise (clap)               Startle present, ceases other movements <\/p>\n
Meaningful noise (rattled steel tumbler and spoon, film songs
\n                                                        Non-specific head and body movements <\/p>\n
of 1970s) <\/p>\n
Spoken commands (“close your eyes”, “lift left hand “: in
\n                                                        Unable to obey commands. No specific or reproducible <\/p>\n
English, Marathi and Konkani)                           response <\/p>\n
VISUAL AWARENESS                    Bright light to eyes                   Pupillary responses present <\/p>\n
Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly <\/p>\n
rattle)                                                 reproducible <\/p>\n
Visual threat (fingers suddenly moved toward eyes)      Blinks, but more consistent on left than right <\/p>\n
Written command (English, Marathi: close your eyes)  No response <\/p>\n
SOMATIC AWARENESS                   Painful stimuli to limbs (light prick with
\n                                                                           Wi
\n                                                                               thdrawal, maximal in left upper limb <\/p>\n
                                    sharp end of tendon hammer) <\/p>\n
Painful stimuli to face                                 Distress but no co-ordinated response to remove stimulus <\/p>\n
Routine sensory stimuli during care (changing position in bed
\n                                                        Generalized non specific response presence but no coordinated <\/p>\n
and feeding)                                            attempt to assist in process <\/p>\n
MOTOR OUTPUT                        Spontaneous                            Non-specific undirected activities. Goal <\/p>\n
                                                                           directed – lifting left hand to left side of <\/p>\n
                                                                           face, apparently to rub her left eye.\n<\/p>\n
Responsive                                              Non-specific undirected without any goal directed activities. <\/p>\n
Conclusion:\n<\/p>\n
  From the above examination,  she has  evidence  of intact auditory,  visual, somatic <\/p>\n
and motor primary neural pathways. However no definitive evidence for awareness <\/p>\n
of   auditory,   visual,   somatic   and   motor   stimuli   was   observed   during   our <\/p>\n
examinations.\n<\/p>\n
VIIb. Table 2. Application of Criteria for Vegetative State <\/p>\n
(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):\n<\/p>\n
                                                       Exa
\n                                                             mination findings : whether she meets Criteria <\/p>\n
S33-S38) Criteria                                      (Yes \/No \/ Probably) <\/p>\n
Unaware of self and environment                        Yes, Unaware <\/p>\n
No interaction with others                             Yes, no interaction <\/p>\n
                                                                                                    16<\/span><\/p>\n
No sustained, reproducible or purposeful voluntary
\n                                                Yes
\n                                                             , no sustained, reproducible or purposeful <\/p>\n
behavioural response to visual, auditory, tactile or
\n                                                b
\n                                                  ehavioural response, but :\n<\/p>\n
noxious stimuli                                 1. Resisted examination of fundus <\/p>\n
                                                2. Licked sugar off lips <\/p>\n
No language comprehension or expression         Yes, no comprehension <\/p>\n
No blink to visual threat                       Blinks, but more consistent on left than right <\/p>\n
Present sleep wake cycles                       Yes (according to nurses) <\/p>\n
Preserved autonomic and hypothalamic function
\n                                                Yes <\/p>\n
Preserved cranial nerve reflexes                Yes <\/p>\n
Bowel and bladder incontinence                  Yes <\/p>\n
VIII. References <\/p>\n
1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N <\/p>\n
Engl J Med 1994; 330: 1499-508 <\/p>\n
2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis <\/p>\n
and management. Brit Med J 1999; 319:841-4 <\/p>\n
3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and <\/p>\n
diagnostic criteria. Neurology 2002;58:349-353 <\/p>\n
4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology <\/p>\n
2010;75;S33″\n<\/p>\n<\/p>\n
8.      On 18th February, 2011, we then passed the following order :<\/p>\n
                 “In the above case Dr. J.V. Divatia on 17.02.2011 handed <\/p>\n
        over   the   report   of   the   team   of   three   doctors   whom   we   had <\/p>\n
        appointed   by   our   order   dated   24th  January,   2011.   He   has   also <\/p>\n
        handed over a CD in this connection. Let the report as well as <\/p>\n
        the CD form part of the record.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                 On mentioning, the case has been adjourned to be listed <\/p>\n
        on 2nd  March, 2011 at the request of learned Attorney General <\/p>\n
        of   India,   Mr.   T.R.   Andhyarujina,   learned   Senior   Advocate, <\/p>\n
        whom we have appointed as amicus curiae in the case as well <\/p>\n
        as   Mr.   Shekhar   Naphade,   learned   Senior   Advocate   for   the <\/p>\n
        petitioner.<\/p><\/blockquote>\n
                 We request the doctors whom we had appointed viz.,  Dr. <\/p>\n
        J.V. Divatia, Dr. Roop Gurshani and  Dr. Nilesh Shah to appear <\/p>\n
        before us on 2nd March, 2011 at 10.30 A.M. in the Court, since <\/p>\n
                                                                                     17<\/span><\/p>\n
it is quite possible that we may like to ask them questions about <\/p>\n
the report which they have submitted, and in general about their <\/p>\n
views in connection with euthanasia.\n<\/p>\n<\/p>\n
        On perusal of the report of the committee of doctors to us <\/p>\n
we have noted that there are many technical terms which have <\/p>\n
been   used   therein   which   a   non-medical   man   would   find   it <\/p>\n
difficult   to   understand.     We,   therefore,   request   the   doctors   to <\/p>\n
submit a supplementary report by the next date of hearing (by <\/p>\n
e-mailing    copy  of the same two days  before the next date of <\/p>\n
hearing) in which the meaning  of these technical  terms in the <\/p>\n
report is also explained.\n<\/p>\n<\/p>\n
        The Central Government is directed to arrange for the air <\/p>\n
travel expenses of all the three doctors as well as their stay in a <\/p>\n
suitable   accommodation   at   Delhi   and   also   to   provide   them <\/p>\n
necessary conveyance  and other  facilities  they require, so that <\/p>\n
they can appear before us on 02.03.2011.\n<\/p>\n<\/p>\n
        An honorarium may also be given to the doctors, if they <\/p>\n
so   desire,   which   may   be   arranged   mutually   with   the   learned <\/p>\n
Attorney General.\n<\/p>\n<\/p>\n
        The Dean of King Edward Memorial Hospital as well as <\/p>\n
Ms.   Pinky   Virani   (who   claims   to   be   the   next   friend   of   the <\/p>\n
petitioner)   are   directed   to   intimate   the   brother(s)\/sister(s)     or <\/p>\n
other   close   relatives   of     the petitioner that the case will be <\/p>\n
listed  on  2nd  March,  2011 in  the Supreme  Court  and they  can <\/p>\n
put   forward   their   views   before   the   Court,   if   they   so   desire. <\/p>\n
Learned counsel for the petitioner and the Registry of this Court <\/p>\n
shall communicate a copy of this Order forthwith  to  the  Dean, <\/p>\n
KEM Hospital.  The Dean, KEM Hospital is requested to file an <\/p>\n
affidavit   stating   his   views   regarding   the   prayer   in   this   writ <\/p>\n
petition, and also the condition of the petitioner.<\/p>\n
        Copy   of   this   Order   shall   be   given   forthwith   to   learned <\/p>\n
Attorney   General   of   India,   Mr.   Shekhar   Naphade   and   Mr. <\/p>\n
Andhyarujina, learned Senior Advocates.\n<\/p>\n
\n                                                                                       18<\/span><\/p>\n
                Let  the matter  be listed as  the first item on   2nd  March, <\/p>\n
        2011″.\n<\/p>\n<\/p>\n
9.      On 2.3.2011, the matter was listed again before us and we first saw <\/p>\n
the screening of the CD submitted by the team of doctors along with their <\/p>\n
report.   We had arranged for the screening of the CD in the Courtroom, so <\/p>\n
that  all present  in  Court  could  see  the condition   of  Aruna Shanbaug.   For <\/p>\n
doing so, we have relied on the precedent of the Nuremburg trials in which a <\/p>\n
screening was done in the Courtroom of some of the Nazi atrocities during <\/p>\n
the Second World  War.   We have heard learned counsel for the parties in <\/p>\n
great detail.   The three doctors nominated by us are also present in Court. <\/p>\n
As   requested   by   us,   the   doctors   team   submitted   a   supplementary   report <\/p>\n
before us which states :\n<\/p>\n
\n Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug <\/p>\n
Jointly prepared and signed by <\/p>\n
1. Dr. J.V. Divatia <\/p>\n
(Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial <\/p>\n
Hospital, Mumbai) <\/p>\n
2. Dr. Roop Gursahani <\/p>\n
(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) <\/p>\n
3. Dr. Nilesh Shah <\/p>\n
(Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation <\/p>\n
Medical College and General Hospital).\n<\/p>\n
\nMumbai <\/p>\n
February 26, 2011 <\/p>\n
                                                                                                               19<\/span><\/p>\n
INDEX <\/p>\n
Introduction 3 <\/p>\n
Terminology 4 <\/p>\n
Glossary of Technical terms 7 <\/p>\n
Opinion 11 3 <\/p>\n
Introduction <\/p>\n
This  document   is   a   supplement   to   the  Report   of   Examination   of   Ms.   Aruna  Ramachandra <\/p>\n
Shanbaug, dated February 14, 2011.\n<\/p>\n
\nOn   perusal   of   the   report,   the   Hon.   Court   observed   that   there   were   many   technical   terms <\/p>\n
which a non-medical man would find it difficult to understand, and requested us to submit a <\/p>\n
supplementary   report   in   which   the   meaning   of   these   technical   terms   in   the   report   is   also <\/p>\n
explained.\n<\/p>\n
\nWe have therefore prepared this Supplement to include a glossary of technical terms used in <\/p>\n
the   earlier   Report,   and   also   to   clarify   some   of   the   terminology   related   to   brain   damage. <\/p>\n
Finally, we have given our opinion in the case of Aruna Shanbaug. <\/p>\n
Terminology <\/p>\n
The   words   coma,   brain   death   and   vegetative   state   are   often   used   in   common   language   to <\/p>\n
describe severe brain damage. However, in medical terminology, these  terms have specific <\/p>\n
meaning and significance.\n<\/p>\n
Brain death <\/p>\n
A state of prolonged irreversible  cessation of all brain activity,  including lower brain stem <\/p>\n
function with the complete absence of voluntary movements, responses to stimuli, brain stem <\/p>\n
reflexes, and spontaneous respirations.\n<\/p>\n
\nExplanation:   This   is   the   most   severe   form   of   brain   damage.   The   patient   is   unconscious, <\/p>\n
completely   unresponsive,   has   no   reflex   activity   from   centres   in   the   brain,   and   has   no <\/p>\n
breathing   efforts   on   his   own.   However   the   heart   is   beating.   This   patient   can   only   be <\/p>\n
maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain <\/p>\n
blood pressure, etc). These patients can be legally declared dead (`brain dead’) to allow their <\/p>\n
organs to be taken for donation.\n<\/p>\n
\nAruna Shanbaug is clearly not brain dead.\n<\/p>\n
Coma <\/p>\n
Patients   in   coma   have   complete   failure   of   the   arousal   system   with   no   spontaneous   eye <\/p>\n
opening and are unable to be awakened by application of vigorous sensory stimulation. <\/p>\n
                                                                                                            20<\/span><\/p>\n
Explanation: These patients are unconscious. They cannot be awakened even by application <\/p>\n
of   a   painful   stimulus.   They   have   normal   heart   beat   and   breathing,   and   do   not   require <\/p>\n
advanced life support to preserve life.\n<\/p>\n
\nAruna Shanbaug is clearly not in Coma.\n<\/p>\n
\nVegetative State (VS) <\/p>\n
The complete absence of behavioral evidence for self or environmental awareness. There is <\/p>\n
preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake <\/p>\n
cycles. .i.e. patients are awake, but have no awareness. <\/p>\n
Explanation: Patients appear awake. They have normal heart beat and breathing, and do not <\/p>\n
require   advanced   life   support   to   preserve   life.   They   cannot   produce   a   purposeful,   co-<\/p>\n
ordinated,   voluntary   response   in   a   sustained   manner,   although   they   may   have   primitive <\/p>\n
reflexive   responses   to   light,   sound,   touch   or   pain.   They   cannot   understand,   communicate, <\/p>\n
speak, or have emotions. They are unaware of self and environment and have no interaction <\/p>\n
with   others.   They   cannot   voluntarily   control   passing   of   urine   or   stools.   They   sleep   and <\/p>\n
awaken. As the centres in the brain controlling the heart and breathing are intact, there is no <\/p>\n
threat to life, and patients can survive for many years with expert nursing care. The following <\/p>\n
behaviours may be seen in the vegetative state : <\/p>\n
Sleep-wake cycles with eyes closed, then open <\/p>\n
Patient breathes on her own <\/p>\n
Spontaneous blinking and roving eye movements <\/p>\n
Produce sounds but no words <\/p>\n
Brief, unsustained visual pursuit (following an object with her eyes) <\/p>\n
Grimacing to pain, changing facial expressions <\/p>\n
Yawning; chewing jaw movements <\/p>\n
Swallowing of her own spit <\/p>\n
Nonpurposeful limb movements; arching of back <\/p>\n
Reflex withdrawal from painful stimuli <\/p>\n
Brief movements of head or eyes toward sound or movement without apparent localization or <\/p>\n
fixation <\/p>\n
Startles with a loud sound <\/p>\n
Almost all of these features consistent with the diagnosis of permanent vegetative state were <\/p>\n
present during the medical examination of Aruna Shanbaug. <\/p>\n
                                                                                                               21<\/span><\/p>\n
Minimally Conscious State <\/p>\n
Some patients  with severe alteration in consciousness have neurologic findings that do not <\/p>\n
meet   criteria   for   VS.   These   patients   demonstrate   some   behavioral   evidence   of   conscious <\/p>\n
awareness   but   remain   unable   to   reproduce   this   behavior   consistently.   This   condition   is <\/p>\n
referred to here as  the minimally conscious state (MCS). MCS is distinguished from VS by <\/p>\n
the partial preservation of conscious awareness. <\/p>\n
To   make   the   diagnosis   of   MCS,   limited   but   clearly   discernible   evidence   of   self   or <\/p>\n
environmental awareness must be demonstrated on a reproducible or sustained basis by one <\/p>\n
or more of the following behaviors:\n<\/p>\n
\n7 Following simple commands.\n<\/p>\n
7 Gestural or verbal yes\/no responses (regardless of accuracy). <\/p>\n
7 Intelligible sounds <\/p>\n
7   Purposeful   behavior,   including   movements   or   emotional   behaviors   (smiling,   crying)   that <\/p>\n
occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some <\/p>\n
examples of qualifying purposeful behavior include: <\/p>\n
– appropriate smiling or crying in response to the linguistic or visual content of emotional but <\/p>\n
not to neutral topics or stimuli <\/p>\n
– vocalizations or gestures that occur in direct response to the linguistic content of questions <\/p>\n
–   reaching   for   objects   that   demonstrates   a   clear   relationship   between   object   location   and <\/p>\n
direction of reach <\/p>\n
– touching or holding objects in a manner that accommodates the size and shape of the object <\/p>\n
–   pursuit   eye   movement   or   sustained   fixation   that   occurs   in   direct   response   to   moving   or <\/p>\n
salient stimuli <\/p>\n
None   of   the   above   behaviours   suggestive   of   a   Minimally   Conscious   State   were   observed <\/p>\n
during the examination of Aruna Shanbaug.\n<\/p>\n
GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT <\/p>\n
(In Alphabetical order) Term in text                       Meaning <\/p>\n
Affect                                                     Feeling conveyed though expressions and <\/p>\n
                                                           behavior <\/p>\n
Afebrile                                                   No fever <\/p>\n
Auditory                                                   Related to hearing <\/p>\n
Bedsore                                                    A painful wound on the body caused by <\/p>\n
                                                           having to lie in bed for a long time <\/p>\n
Bilaterally                                                On both sides (right and left) <\/p>\n
Bruise                                                     An injury or mark where the skin has not <\/p>\n
                                                           been broken but is darker in colour, often as <\/p>\n
                                                                                  22<\/span><\/p>\n
                                  a result of being hit by something <\/p>\n
Catatonic                         Describes someone who is stiff and not <\/p>\n
                                  moving or reacting, as if dead <\/p>\n
Cerebral atrophy                  Shrinking of the globe (cortex) of the brain <\/p>\n
Clubbing                          Bulging or prominence of the nailbed, <\/p>\n
                                  making base of the nails look thick. This is <\/p>\n
                                  often due to longstanding infection inside the <\/p>\n
                                  lungs.\n<\/p>\n
Cognitive                         Related to ability to understand and process <\/p>\n
                                  information in the brain <\/p>\n
Conjugate                         Synchronised movement (of the eyeball) <\/p>\n
Conscious                         Awake with eyes open. By itself the term <\/p>\n
                                  conscious does not convey any information <\/p>\n
                                  about awareness of self and surroundings, or <\/p>\n
                                  the ability to understand, communicate, have <\/p>\n
                                  emotions, etc. <\/p>\n
Contractures                      Muscles or tendons that have become <\/p>\n
                                  shortened and taut over a period of time. This <\/p>\n
                                  causes deformity and restriction of <\/p>\n
                                  movements.\n<\/p>\n
CT Scan                           A specialized X-ray test where images of the <\/p>\n
                                  brain (or other part of the body) are obtained <\/p>\n
                                  in cross-section at different levels. This <\/p>\n
                                  allows clear visualization of different parts of <\/p>\n
                                  the brain <\/p>\n
Cyanosis                          Bluish discoloration of the nails, lips or skin. <\/p>\n
                                  It may be due to low levels of oxygen in the <\/p>\n
                                  blood <\/p>\n
Deep tendon reflexes              Reflex response of the fleshy part of certain <\/p>\n
                                  muscles when its tendon is hit lightly with an <\/p>\n
                                  examination hammer <\/p>\n
Dementia                          Disorder in which there is a cognitive defect, <\/p>\n
                                  i.e. the patient is unable to understand and <\/p>\n
                                  process information in the brain <\/p>\n
Electroencephalography, (EEG)     Recording of the electrical activity of the <\/p>\n
                                  brain <\/p>\n
Febrile illness                   Illness with fever <\/p>\n
Fracture                          A crack or a break in bones <\/p>\n
Fundi                             Plural of fundus. Fundus of the eye is the <\/p>\n
                                  interior surface of the eye, opposite the lens. <\/p>\n
                                  It is examined with an instrument called the <\/p>\n
                                  ophthalmoscope <\/p>\n
Gag reflex                        Movement of the palate in response to <\/p>\n
                                  insertion of a tongue depressor in the throat <\/p>\n
Hallucinations                    Perception in the absence of stimuli. (e.g. <\/p>\n
                                  hearing voices which are not there or which <\/p>\n
                                  are inaudible to others) <\/p>\n
Hemifields                        Right or left part of the field of vision <\/p>\n
                                                                                        23<\/span><\/p>\n
Hypoxic                               Related to reduced oxygen levels in the <\/p>\n
                                      blood <\/p>\n
Icterus                               Yellowish discoloration of the skin and <\/p>\n
                                      eyeballs. This is commonly known as <\/p>\n
                                      jaundice, and may be caused by liver disease <\/p>\n
Illusions                             Misperception of stimuli (seeing a rope as a <\/p>\n
                                      snake) <\/p>\n
Immediate memory                      Memory of events which have occurred just <\/p>\n
                                      a few minutes ago <\/p>\n
Insight                               Person’s understanding of his or her own <\/p>\n
                                      illness <\/p>\n
Intellectual capacity                 Ability to solve problems. The ability to <\/p>\n
                                      learn, understand and make judgments or <\/p>\n
                                      have opinions that are based on reason <\/p>\n
Involuntary movements                 Automatic movements over which patient <\/p>\n
                                      has no control <\/p>\n
Ischemic                              Related to restriction or cutting off of the <\/p>\n
                                      blood flow to any part of the body <\/p>\n
Malnourishment                        Weak and in bad health because of having <\/p>\n
                                      too little food or too little of the types of <\/p>\n
                                      food necessary for good health <\/p>\n
Menace reflex                         Blinking in response to hand movements in <\/p>\n
                                      front of eyes <\/p>\n
Mood                                  The way one feels at a particular time <\/p>\n
Motor                                 Related to movement <\/p>\n
Movement artefacts                    Disturbance in the image seen in the CT scan <\/p>\n
                                      due to patient movement <\/p>\n
Oral feed                             Food given through mouth <\/p>\n
Orientation                           Awareness about the time, place and person <\/p>\n
Pallor                                Pale appearance of the skin. Usually this is <\/p>\n
                                      due to a low red blood cell count or low <\/p>\n
                                      haemoglobin level in the blood.\n<\/p>\n
Passive movement                      Movement of a limb or part of the body done <\/p>\n
                                      by the doctor without any effort by the <\/p>\n
                                      patient <\/p>\n
Perception                            Sensory experiences (such as seeing, hearing <\/p>\n
                                      etc.) <\/p>\n
Perceptual abnormalities              Abnormal sensory experiences, e.g, seeing <\/p>\n
                                      things that do not exist, hearing sounds when <\/p>\n
                                      there are none <\/p>\n
Plantars                              Reflex response of the toes when a sharp <\/p>\n
                                      painful stimulus is applied to the sole of the <\/p>\n
                                      foot. The normal response is curling <\/p>\n
                                      downwards of the toes.\n<\/p>\n
Plantars were withdrawal\/extensor     When a painful stimulus was applied to the <\/p>\n
                                      sole of the foot the toes spread out and there <\/p>\n
                                      was reflex movement of the leg (withdrawal) <\/p>\n
                                      or upward curling of the great toe and other <\/p>\n
                                                                                                         24<\/span><\/p>\n
                                                        toes (extensor). This is an abnormal response <\/p>\n
                                                        indicating damage in the pathway in the <\/p>\n
                                                        brain or to the area in the brain controlling <\/p>\n
                                                        function of the legs.\n<\/p>\n
Primary neural pathways                                 Course of the nerves from a part of the body <\/p>\n
                                                        to the area in the brain responsible for the <\/p>\n
                                                        function of that part <\/p>\n
Pupillary reaction                                      The pupillary light reflex controls the <\/p>\n
                                                        diameter of the pupil, in response to the <\/p>\n
                                                        intensity of light. Greater intensity light <\/p>\n
                                                        causes the pupil to become smaller (allowing <\/p>\n
                                                        less light in), whereas <\/p>\n
Opinion <\/p>\n
In our view, the issues in this case (and other similar cases) are: <\/p>\n
1.   In   a   person   who   is   in   a   permanent   vegetative   state   (PVS),   should   withholding   or <\/p>\n
withdrawal   of   life   sustaining   therapies   (many   authorities   would   include   placement   of   an <\/p>\n
artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful’ ? <\/p>\n
2. If the patient has previously expressed a wish not to have life-sustaining treatments in case <\/p>\n
of futile care or a PVS, should his \/ her wishes be respected when the situation arises? <\/p>\n
3. In  case  a person  has  not  previously  expressed  such  a  wish,  if  his  family  or  next  of kin <\/p>\n
makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes <\/p>\n
be respected?\n<\/p>\n<\/p>\n
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 <\/p>\n
years by the staff of KEM Hospital. Who should take decisions on her behalf? <\/p>\n
Questions such as these come up at times in the course of medical practice. We realize that <\/p>\n
answers to these questions are difficult, and involve several ethical, legal and social issues. <\/p>\n
Our opinion is based on medical facts and on the principles of medical ethics. We hope that <\/p>\n
the Honourable Court will provide guidance and clarity in this matter. <\/p>\n
Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance. <\/p>\n
1. Autonomy means the right to self-determination, where the informed patient has a right to <\/p>\n
choose the manner of his treatment. To be autonomous the patient should be competent to <\/p>\n
make decisions and choices. In the event that he is incompetent to make choices, his wishes <\/p>\n
expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his <\/p>\n
behalf (‘substituted judgment’) are to be respected. <\/p>\n
The surrogate is expected to represent what the patient may have decided had he \/ she been <\/p>\n
competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the <\/p>\n
                                                                                                                   25<\/span><\/p>\n
patient’s best interest follows a course of action because it is best for the patient, and is not <\/p>\n
influenced by personal convictions, motives or other considerations. <\/p>\n
2. Beneficence is acting in what is (or judged to be) in patient’s best interest. Acting in the <\/p>\n
patient’s best interest means following a course of action that is best for the patient, and is not <\/p>\n
influenced   by   personal   convictions,   motives   or   other   considerations.   In   some   cases,   the <\/p>\n
doctor’s expanded goals may include allowing the natural dying process (neither hastening <\/p>\n
nor   delaying   death,   but   `letting   nature   take   its   course’),   thus   avoiding   or   reducing   the <\/p>\n
sufferings of the patient and his family, and providing emotional support. This is not to be <\/p>\n
confused with euthanasia, which involves the doctor’s deliberate and intentional act through <\/p>\n
administering a lethal injection to end the life of the patient. <\/p>\n
In the present case under consideration <\/p>\n
1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining <\/p>\n
treatments for a permanent vegetative state.\n<\/p>\n<\/p>\n
2. Any decision regarding her treatment will have to be taken by a surrogate <\/p>\n
3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned <\/p>\n
by   her   family.   We   believe   that   the   Dean   of   the   KEM   Hospital   (representing   the   staff   of <\/p>\n
hospital) is an appropriate surrogate.\n<\/p>\n<\/p>\n
4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting <\/p>\n
in the best interest  of the patient, feel  that  life  sustaining  treatments should continue,  their <\/p>\n
decision should be respected.\n<\/p>\n<\/p>\n
5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting <\/p>\n
in   the   best   interest   of   the   patient,   feel   that   withholding   or   withdrawing   life-sustaining <\/p>\n
treatments   is   the   appropriate   course   of   action,   they   should   be   allowed   to   do   so,   and   their <\/p>\n
actions should not be considered unlawful.\n<\/p>\n<\/p>\n
10.         To complete the narration of facts and before we come to the legal <\/p>\n
issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital <\/p>\n
Mumbai   has   issued   a   statement   on   24.1.2011   opposing   euthanasia   for   the <\/p>\n
petitioner :-\n<\/p>\n<\/p>\n
                    “She means a lot to KEM hospital. She is on liquid diet <\/p>\n
          and   loves   listening   to   music.   We   have   never   subjected   her   to <\/p>\n
          intravenous   food   or   fed   her   via   a   tube.   All   these   years,   she <\/p>\n
          hasn’t had even one bedsore. When those looking after her do <\/p>\n
                                                                                                   26<\/span><\/p>\n
       not have a problem, I don’t understand why a third party who <\/p>\n
       has   nothing  to  do  with  her  [Pinky   Virani  who  has  moved  the <\/p>\n
       apex  court  to seek  euthanasia  for Shanbaug]  needs  to worry,” <\/p>\n
       added   Dr   Oak,   who,   when   he   took   over   as   dean   of   KEM <\/p>\n
       hospital in 2008, visited her first to take her blessings. “I call on <\/p>\n
       her whenever I get time. I am there whenever she has dysentery <\/p>\n
       or  any  another   problem. She  is   very   much  alive  and  we  have <\/p>\n
       faith in the judiciary,” said Dr Oak.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
11.    Dr. Sanjay Oak has subsequently filed an affidavit in this Court which <\/p>\n
states :\n<\/p>\n<\/p>\n
               “a)      Smt.   Aruna   Ramchandra   Shanbaug   has   been <\/p>\n
       admitted   in   a   single   room   in   Ward   No.4   which   is   a   ward   of <\/p>\n
       general   internal   medicine   patients   and   she   has   been   there   for <\/p>\n
       last   37   years.     She   is   looked   after   entirely   by   doctors,   nurses <\/p>\n
       and   para-medical   staff   of   KEM   Hospital.     She   has   been   our <\/p>\n
       staff   nurse   and   the   unfortunate   tragic   incidence   has   happened <\/p>\n
       with   her   in   KEM   Hospital   and   I   must   put   on   record   that   the <\/p>\n
       entire medical, administrative, nursing and para-medical staff is <\/p>\n
       extremely  attached to her and consider her as one of us.   Her <\/p>\n
       relatives and a gentleman (her fiancee) used to visit her in the <\/p>\n
       initial period of her illness but subsequently she has been left to <\/p>\n
       the care of KEM staff.  I visit her frequently and my last visit to <\/p>\n
       her was on 22nd  February, 2011.   I give my observations as a <\/p>\n
       Clinician about Smt. Aruna Shanbaug as under :\n<\/p>\n<\/p>\n
               b)       It   would   be   incorrect   to   say   that   Smt.   Aruna <\/p>\n
       Shanbaug is an appropriate case for Coma.  It appears that for a <\/p>\n
       crucial, critical period her brain was deprived of Oxygen supply <\/p>\n
       and   this   has   resulted   in   her   present   state   similar   to   that   of <\/p>\n
       Cerebral   Palsy   in   the   newborn   child.     It   is   a   condition   where <\/p>\n
       brain   looses   it’s   co-ordinatory,   sensory   as   well   as   motor <\/p>\n
       functions and this includes loss of speech and perception.  This <\/p>\n
       has   resulted   into   a   state   which   in   a   layman’s   words  “Aruna <\/p>\n
       lives in her own world for last 37 years”.   She is lying in a <\/p>\n
       bed   in   a   single   room   for   33   years.     She   has   not   been   able   to <\/p>\n
       stand or walk, nor have we attempted to do that of late because <\/p>\n
                                                                                         27<\/span><\/p>\n
we   fear   that   she   is   fragile   and   would   break   her   bones   if   she <\/p>\n
falls.   Her extremities and fingers have developed contractures <\/p>\n
and   subsequent   to   non-use;   there   is   wasting   of   her   body <\/p>\n
muscles.     Her   eyes   are   open   and   she   blinks   frequently; <\/p>\n
however,   these   movements   are   not   pertaining   to   a   specific <\/p>\n
purpose or as a response to a question.   At times she  is quiet <\/p>\n
and at times she shouts or shrieks.  However, I must say that her <\/p>\n
shouts   and   shrieks   are   completely   oblivious   to   anybody’s <\/p>\n
presence in her room.  It is not true that she shouts after seeing <\/p>\n
a man.  I do not think Aruna can distinguish between a man and <\/p>\n
a   woman,   nor   can   she   even   distinguish   between   ordinate   and <\/p>\n
inordinate   object.     We   play   devotional   songs   rendered   by <\/p>\n
Sadguru Wamanrao Pai continuously in her room and she lies <\/p>\n
down   on   her   bed   listening   to   them.     She   expresses   her <\/p>\n
displeasure   by   grimaces   and   shouts   if   the   tape   recorder   is <\/p>\n
switched   off.     All   these   years   she   was   never   fed  by   tube   and <\/p>\n
whenever   a   nurse   used   to   take   food   to   her   lips,   she   used   to <\/p>\n
swallow   it.     It   is   only   since   September   2010   she   developed <\/p>\n
Malaria and her oral  intake dropped.   In order  to take care of <\/p>\n
her   calorie   make   need,   nurses   cadre   resorted   to   naso-gastric <\/p>\n
tube   feed   and   now   she   is   used   to   NG   feeding.     However,   if <\/p>\n
small morsels are held near her lips, Aruna accepts them gladly. <\/p>\n
It   appears  that  she  relishes   fish  and  occasionally   smiles   when <\/p>\n
she   is   given   non-vegetarian   food.     However,   I   am   honest   in <\/p>\n
admitting   that   her   smiles   are   not   purposeful   and   it   would   be <\/p>\n
improper to interpret them as a signal of gratification.   I must <\/p>\n
put on record that in the world history of medicine there would <\/p>\n
not   be   another   single   case   where   such   a   person   is   cared   and <\/p>\n
nurtured in bed for 33 long years and has not developed a single <\/p>\n
bed sore.  This speaks of volumes of excellence of nursing care <\/p>\n
that KEM Nursing staff has given to her.\n<\/p>\n<\/p>\n
        c)      This care is given not as a part of duty but as a part <\/p>\n
of   feeling   of  oneness.     With   every   new   batch   of   entrants,   the <\/p>\n
student nurses are introduced to her and they are told that she <\/p>\n
was one of us and she continues to be one of us and then they <\/p>\n
whole-heartedly take care of Aruna.  In my opinion, this one is <\/p>\n
finest   example   of   love,   professionalism,   dedication   and <\/p>\n
commitment to one of our professional colleagues who is ailing <\/p>\n
                                                                                                    28<\/span><\/p>\n
       and cannot support herself.  Not once, in this long sojourn of 33 <\/p>\n
       years, anybody has thought of putting  an end to her so called <\/p>\n
       vegetative   existence.     There   have   been   several   Deans   and <\/p>\n
       Doctors   of   KEM   Hospital   who   have   cared   her   in   succession. <\/p>\n
       Right from illustrious Dr. C.K. Deshpande in whose tenure the <\/p>\n
       incidence   happened   in   1973,   Dr.   G.B.   Parulkar,   Dr.   Smt. <\/p>\n
       Pragna   M.   Pai,   Dr.   R.J.   Shirahatti,   Dr.   Smt.   N.A.   Kshirsagar, <\/p>\n
       Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us <\/p>\n
       have   visited   her   room   time   and   again   and   have   cared   for   her <\/p>\n
       and   seen   her   through   her   ups   and   downs.     The   very   idea   of <\/p>\n
       withholding   food  or  putting  her to  sleep  by  active  medication <\/p>\n
       (mercy   killing)   is   extremely   difficult   for   anybody   working   in <\/p>\n
       Seth GSMC & KEM Hospital to accept and I sincerely make a <\/p>\n
       plea   to   the   Learned   Counsel   and   Hon’ble   Judges   of   Supreme <\/p>\n
       Court   of   India   that   this   should   not   be   allowed.     Aruna   has <\/p>\n
       probably crossed 60 years of life and would one day meet her <\/p>\n
       natural   end.     The   Doctors,   Nurses   and   staff   of   KEM,   are <\/p>\n
       determined   to   take   care   of   her   till   her   last   breath   by   natural <\/p>\n
       process.\n<\/p>\n<\/p>\n
               d)      I   do   not   think   it   is   proper   on   my   part   to   make   a <\/p>\n
       comment on the entire case.  However, as a clinical surgeon for <\/p>\n
       last 3 decades and as an administrator of the hospitals for last 7 <\/p>\n
       years   and   as   a   student   of   legal   system   of   India   (as   I   hold <\/p>\n
       “Bachelor of Law” degree from Mumbai University), I feel that <\/p>\n
       entire society has not matured  enough to accept the execution <\/p>\n
       of an Act of Euthanasia or Mercy Killing.   I fear that this may <\/p>\n
       get misused and our monitoring and deterring mechanisms may <\/p>\n
       fail to prevent those unfortunate incidences.  To me any mature <\/p>\n
       society is best judged by it’s capacity and commitment to take <\/p>\n
       care of it’s “invalid” ones.  They are the children of Lesser God <\/p>\n
       and in fact, developing nation as we are, we should move in a <\/p>\n
       positive manner of taking care of several unfortunate ones who <\/p>\n
       have deficiencies, disabilities and deformities.”                          <\/p>\n
12.    The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister-<\/p>\n
in-charge   ward   no.   4   KEM   hospital   Lenny   Cornielo,   Assistant   Matron <\/p>\n
                                                                                              29<\/span><\/p>\n
Urmila   Chauhan   and   others   have   also   issued   statements     that   they   were <\/p>\n
looking after Aruna Shanbaug and want her to live. “Aruna is the bond that <\/p>\n
unites   us”,   the   KEM   Hospital   staff   has   stated.     One   retired   nurse,   Tidi <\/p>\n
Makwana, who used to take care of Aruna while in service, has even offered <\/p>\n
to continue to take care of her without any salary and without charging any <\/p>\n
traveling expenses.\n<\/p>\n<\/p>\n
13.     We   have   referred   to   these   statements   because   it   is   evident   that   the <\/p>\n
KEM   Hospital   staff   right   from   the   Dean,   including   the   present   Dean   Dr. <\/p>\n
Sanjay Oak and down to the staff nurses and para-medical staff have been <\/p>\n
looking   after   Aruna   for   38   years   day   and   night.     What   they   have   done   is <\/p>\n
simply marvelous.  They feed Aruna, wash her, bathe her, cut her nails, and <\/p>\n
generally   take   care   of   her,   and   they   have   been   doing   this   not   on   a   few <\/p>\n
occasions but day and night, year after year.  The whole country must learn <\/p>\n
the meaning of dedication and sacrifice from the KEM hospital staff.   In 38 <\/p>\n
years Aruna has not developed one bed sore.\n<\/p>\n<\/p>\n
14.     It   is   thus   obvious   that   the   KEM   hospital   staff   has   developed   an <\/p>\n
emotional bonding and attachment to Aruna Shanbaug, and in a sense they <\/p>\n
are her real family today.  Ms. Pinki Virani who claims to be the next friend <\/p>\n
of Aruna Shanbaug and has filed this petition on her behalf is not a relative <\/p>\n
                                                                                          30<\/span><\/p>\n
of Aruna Shanbaug nor can she claim to have such close emotional bonding <\/p>\n
with   her   as   the   KEM   hospital   staff.     Hence,   we   are   treating   the   KEM <\/p>\n
hospital   staff   as   the   next   friend   of   Aruna   Shanbaug   and   we   decline   to <\/p>\n
recognize Ms. Pinki Virani as her next friend.   No doubt Ms. Pinki Virani <\/p>\n
has written a book about Aruna Shanbaug and has visited her a few times, <\/p>\n
and we have great respect for her for the social causes she has espoused, but <\/p>\n
she   cannot   claim  to  have   the   extent  of  attachment  or  bonding   with  Aruna <\/p>\n
which the KEM hospital staff, which has been looking after her for years, <\/p>\n
claims to have.\n<\/p>\n
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES<\/p>\n
15.    Mr.   Shekhar   Naphade,   learned   senior   counsel   for   the   petitioner   has <\/p>\n
relied on the decision of this Court in Vikram Deo Singh Tomar vs. State <\/p>\n
of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this <\/p>\n
Court :\n<\/p>\n<\/p>\n
       “We   live   in   an   age   when   this   Court   has   demonstrated,   while <\/p>\n
       interpreting Article 21 of the Constitution, that every person is <\/p>\n
       entitled   to   a   quality   of   life   consistent   with   his   human <\/p>\n
       personality.     The   right   to   live   with   human   dignity   is   the <\/p>\n
       fundamental right of every Indian citizen”.<\/p>\n
                                                                                                    31<\/span><\/p>\n<\/blockquote>\n
16.    He has also relied on the decision of this Court in  P. Rathinam  vs. <\/p>\n
Union of India and<\/a> another (1994) 3 SCC 394 in which a two-Judge bench <\/p>\n
of this Court quoted with approval a passage from an article by Dr. M. Indira <\/p>\n
and Dr. Alka Dhal in which it was mentioned :\n<\/p>\n<\/p>\n
       “Life is not mere living but living in health.   Health is not the <\/p>\n
       absence of illness but a glowing vitality”.\n<\/p>\n<\/p>\n
17.    The decision in Rathinam’s case (supra) was, however, overruled by <\/p>\n
a   Constitution   Bench   decision   of   this   Court   in  Gian   Kaur  vs.  State   of <\/p>\n
Punjab (1996) 2 SCC 648.\n<\/p>\n<\/p>\n
18.    Mr. Naphade, however, has invited our attention to paras 24 & 25 of <\/p>\n
the aforesaid decision in which it was observed :<\/p>\n
       “(24)  Protagonism of euthanasia on the view that existence in <\/p>\n
       persistent vegetative state (PVS) is not a benefit to the patient <\/p>\n
       of a terminal illness being unrelated to the principle of ‘sanctity <\/p>\n
       of  life’   or   the  right   to   live  with   dignity’   is   of  no   assistance   to <\/p>\n
       determine   the   scope   of   Article   21   for   deciding   whether   the <\/p>\n
       guarantee of right to life’ therein includes the right to die’. The <\/p>\n
       right   to   life’   including   the   right   to   live   with   human   dignity <\/p>\n
       would mean the existence of such a right upto the end of natural <\/p>\n
       life. This also includes the right to a dignified life upto the point <\/p>\n
       of   death   including   a   dignified   procedure   of   death.   In   other <\/p>\n
       words,   this   may   include   the   right   of   a   dying   man   to   also   die <\/p>\n
       with  dignity  when  his  life   is  ebbing out.  But the  ‘right  to  die’ <\/p>\n
       with dignity at the end of life is not to be confused or equated <\/p>\n
                                                                                                32<\/span><\/p>\n
       with   the   right   to   die’   an   unnatural   death   curtailing   the   natural <\/p>\n
       span of life.\n<\/p><\/blockquote>\n
\n       (25)    A question may arise, in the context of a dying man, who <\/p>\n
       is, terminally ill or in a persistent vegetative state that he may <\/p>\n
       be permitted to terminate it by a premature extinction of his life <\/p>\n
       in those circumstances. This category of cases may fall within <\/p>\n
       the ambit of the ‘right to die’ with dignity as a part of right to <\/p>\n
       live with dignity, when death due to termination of natural life <\/p>\n
       is   certain   and   imminent   and   the   process   of   natural   death   has <\/p>\n
       commenced. These are not cases of extinguishing life but only <\/p>\n
       of accelerating conclusion of the process of natural death which <\/p>\n
       has   already   commenced.   The   debate   even   in   such   cases   to <\/p>\n
       permit physician assisted termination of life is inconclusive. It <\/p>\n
       is sufficient to reiterate that the argument to support the view of <\/p>\n
       permitting termination of life in such cases to reduce the period <\/p>\n
       of   suffering   during   the   process   of   certain   natural   death   is   not <\/p>\n
       available  to interpret Article  21 to include therein the right to <\/p>\n
       curtail the natural span of life”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
He has particularly emphasized paragraph 25 of the said judgment in support <\/p>\n
of his submission that Aruna Shanbaug should be allowed to die.<\/p>\n
19.    We have carefully considered paragraphs 24 and 25 in  Gian Kaur’s <\/p>\n
case (supra) and we are of the opinion that all that has been said therein is <\/p>\n
that the view in  Rathinam’s  case (supra) that the right to life includes the <\/p>\n
right to die is not correct.   We cannot construe Gian Kaur’s case (supra) to <\/p>\n
mean  anything beyond that.   In fact,  it has been specifically  mentioned in <\/p>\n
paragraph 25 of the aforesaid decision that “the debate even in such cases to <\/p>\n
                                                                                                 33<\/span><\/p>\n
permit   physician   assisted   termination   of   life   is   inconclusive”.     Thus   it   is <\/p>\n
obvious   that   no  final   view   was  expressed   in  the   decision   in  Gian   Kaur’s <\/p>\n
case beyond what we have mentioned above.\n<\/p>\n<\/p>\n
20.     Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani <\/p>\n
is   the   next   friend   of   Aruna   as   she   has   written   a   book   on   her   life   called <\/p>\n
`Aruna’s   story’  and   has   been   following  Aruna’s   case   from  1980  and   has <\/p>\n
done whatever possible and within her means to help Aruna.   Mr. Naphade <\/p>\n
has also invited our attention to the report of the Law Commission of India, <\/p>\n
2006   on   `Medical   Treatment   to   Terminally   Ill   Patients’.     We   have <\/p>\n
perused the said report carefully.\n<\/p>\n<\/p>\n
21.     Learned   Attorney   General   appearing   for   the   Union   of   India   after <\/p>\n
inviting our attention to the relevant case law submitted as under :<\/p>\n
        (i)      Aruna Ramchandra Shanbaug has the right to live in her present <\/p>\n
                 state.\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (ii)     The state that Aruna Ramchandra Shanbaug is presently in does <\/p>\n
                 not   justify   terminating   her   life   by   withdrawing <\/p>\n
                 hydration\/food\/medical support.\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (iii)    The aforesaid acts or series of acts and\/or such omissions will <\/p>\n
                 be cruel, inhuman and intolerable.\n<\/p><\/blockquote>\n
<\/blockquote>\n
        (iv)     Withdrawing\/withholding of hydration\/food\/medical support to <\/p>\n
                 a patient is unknown to Indian law and is contrary to law.<\/p>\n
                                                                                           34<\/span><\/p>\n<\/blockquote>\n
       (v)      In   case   hydration   or   food   is   withdrawn\/withheld   from   Aruna <\/p>\n
                Ramchandra Shanbaug, the efforts which have been put in by <\/p>\n
                batches after batches of nurses of KEM Hospital for the last 37 <\/p>\n
                years will be undermined.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (vi)     Besides causing a deep sense of resentment in the nursing staff <\/p>\n
                as well as other well wishers of Aruna Ramchandra Shanbaug <\/p>\n
                in   KEM   Hospital   including   the   management,   such <\/p>\n
                acts\/omissions   will   lead   to   disheartenment   in   them   and   large <\/p>\n
                scale disillusionment.\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (vii)    In   any   event,   these   acts\/omissions   cannot   be   permitted   at   the <\/p>\n
                instance of Ms. Pinky Virani who desires to be the next friend <\/p>\n
                of Aruna Ramchandra Shanbaug without any locus. <\/p>\n<\/blockquote>\n
Learned Attorney General stated that the report of the Law Commission of <\/p>\n
India on euthanasia has not been accepted by the Government of India.  He <\/p>\n
further submitted that Indian society is emotional and care-oriented.  We do <\/p>\n
not send our parents to old age homes, as it happens in the West.  He stated <\/p>\n
that there was a great danger in permitting euthanasia that the relatives of a <\/p>\n
person may conspire with doctors and get him killed to inherit his property. <\/p>\n
He further submitted that tomorrow there may be a cure to a medical state <\/p>\n
perceived as incurable today.\n<\/p>\n<\/p>\n
22.    Mr.   T.   R.   Andhyarujina,   learned   senior   counsel   whom   we   had <\/p>\n
appointed as Amicus Curiae, in his erudite submissions explained to us the <\/p>\n
law on the point.  He submitted that in general in common law it is the right <\/p>\n
                                                                                                35<\/span><\/p>\n
of   every   individual   to   have   the   control   of   his   own   person   free   from   all <\/p>\n
restraints or interferences of others.   Every human being of adult years and <\/p>\n
sound mind has a right to determine what shall be done with his own body. <\/p>\n
In the case of medical treatment, for example, a surgeon who performs an <\/p>\n
operation without the patient’s consent commits assault or battery.   <\/p>\n
23.     It   follows   as   a   corollary   that   the   patient   possesses   the   right   not   to <\/p>\n
consent i.e. to refuse treatment. (In the United States this right is reinforced <\/p>\n
by a Constitutional right of privacy).  This is known as the principle of self-<\/p>\n
determination or informed consent.\n<\/p>\n<\/p>\n
24.     Mr.   Andhyarujina   submitted   that   the   principle   of   self-determination <\/p>\n
applies   when   a   patient   of   sound   mind  requires   that   life   support   should   be <\/p>\n
discontinued.  The same principle applies where a patient’s consent has been <\/p>\n
expressed   at   an   earlier   date   before   he   became   unconscious   or   otherwise <\/p>\n
incapable   of   communicating   it   as   by   a   `living   will’   or   by   giving   written <\/p>\n
authority to doctors in anticipation of his incompetent situation.<\/p>\n
        Mr.   Andhyarujina   differed   from   the   view   of   the   learned   Attorney <\/p>\n
General   in   that   while   the   latter   opposed   even   passive   euthanasia,   Mr. <\/p>\n
                                                                                              36<\/span><\/p>\n
Andhyarujina was in favour of passive euthanasia provided the decision to <\/p>\n
discontinue life support was taken by responsible medical practitioners.<\/p>\n
25.     If the doctor acts on such consent there is no question of the patient <\/p>\n
committing suicide or of the doctor having aided or abetted him in doing so. <\/p>\n
It   is  simply that  the   patient,   as  he  is   entitled   to  do,  declines   to  consent  to <\/p>\n
treatment which might or would have the effect of prolonging his life and <\/p>\n
the   doctor   has   in   accordance   with   his   duties   complied   with   the   patient’s <\/p>\n
wishes.\n<\/p>\n<\/p>\n
26.     The troublesome question is what happens when the patient is in no <\/p>\n
condition to be able to say whether or not he consents to discontinuance of <\/p>\n
the   treatment   and   has   also   given   no   prior   indication   of   his   wishes   with <\/p>\n
regard  to  it as  in  the case   of  Aruna.     In  such  a  situation the  patient   being <\/p>\n
incompetent to express his self-determination the approach adopted in some <\/p>\n
of   the   American   cases   is   of   “substituted   judgment”   or   the   judgment   of   a <\/p>\n
surrogate.     This   involves   a   detailed   inquiry   into   the   patient’s   views   and <\/p>\n
preferences.  The surrogate decision maker has to gather from material facts <\/p>\n
as   far   as   possible   the   decision   which   the   incompetent   patient   would   have <\/p>\n
made if he was competent.  However, such a test is not favoured in English <\/p>\n
law in relation to incompetent adults.\n<\/p>\n
\n                                                                                                37<\/span><\/p>\n
27.     Absent   any   indication   from   a   patient   who   is   incompetent   the   test <\/p>\n
which   is   adopted   by   Courts   is   what   is   in   the  best   interest   of   the   patient <\/p>\n
whose   life   is   artificially   prolonged   by   such   life   support.     This   is   not   a <\/p>\n
question whether it is in the best interest of the patient that he should die. <\/p>\n
The question is whether it is in the best interest of the patient  that his life <\/p>\n
should be prolonged by the continuance of the life support treatment.   This <\/p>\n
opinion   must   be   formed   by   a   responsible   and   competent   body   of   medical <\/p>\n
persons in charge of the patient.\n<\/p>\n<\/p>\n
28.     The withdrawal of life support by the doctors is in law considered as <\/p>\n
an omission and not a positive step to terminate the life.  The latter would be <\/p>\n
euthanasia, a criminal offence under the present law in UK, USA and India.<\/p>\n
29.     In   such   a   situation,   generally   the   wishes   of   the   patient’s   immediate <\/p>\n
family will be given due weight, though their views cannot be determinative <\/p>\n
of   the   carrying   on   of   treatment   as   they   cannot   dictate   to   responsible   and <\/p>\n
competent   doctors   what   is   in   the   best   interest   of   the   patient.     However, <\/p>\n
experience   shows   that   in   most   cases   the   opinions   of   the   doctors   and   the <\/p>\n
immediate relatives coincide.\n<\/p>\n
\n                                                                                                 38<\/span><\/p>\n
30.     Whilst this Court has held that there is no right to die (suicide) under <\/p>\n
Article 21 of the Constitution and attempt to suicide is a crime vide Section <\/p>\n
309 IPC, the Court has held that the right to life includes the right to live <\/p>\n
with human dignity, and in the case of a dying person who is terminally ill <\/p>\n
or in a permanent vegetative state he may be permitted to terminate it by a <\/p>\n
premature extinction of his life in these circumstances and it is not a crime <\/p>\n
vide Gian Kaur’s case (supra).\n<\/p>\n<\/p>\n
31.     Mr.   Andhyarujina   submitted   that   the   decision   to   withdraw   the   life <\/p>\n
support   is   taken   in   the   best   interests   of   the   patient   by   a   body   of   medical <\/p>\n
persons.  It is not the function of the Court to evaluate the situation and form <\/p>\n
an opinion on its own.   In England for historical reasons the parens patriae <\/p>\n
jurisdiction   over     adult   mentally   incompetent   persons   was   abolished   by <\/p>\n
statute and the Court has no power now to give its consent.  In this situation, <\/p>\n
the Court only gives a declaration that the proposed omission by doctors is <\/p>\n
not unlawful.\n<\/p>\n<\/p>\n
32.     In U.K., the Mental Capacity Act, 2005 now makes provision relating <\/p>\n
to persons who lack capacity and to determine what is in their best interests <\/p>\n
and the power to make declaration by a special Court of Protection as to the <\/p>\n
lawfulness of any act done in relation to a patient.<\/p>\n
                                                                                              39<\/span><\/p>\n
33.     Mr.   Andhyarujina   submitted   that   the   withdrawal   of   nutrition   by <\/p>\n
stopping   essential   food   by   means   of   nasogastric   tube   is   not   the   same   as <\/p>\n
unplugging   a   ventilator   which   artificially   breathes   air   into   the   lungs   of   a <\/p>\n
patient   incapable   of   breathing   resulting   in   instant   death.     In   case   of <\/p>\n
discontinuance of artificial feeding the patient will as a result starve to death <\/p>\n
with all the sufferings and pain and distress associated with such starving. <\/p>\n
This is a very relevant consideration in a PVS patient like Aruna who is not <\/p>\n
totally  unconscious  and   has  sensory  conditions  of  pain  etc.  unlike  Antony <\/p>\n
Bland in  Airedale  vs.  Director MHD  (1993) 2 WLR 316 who was totally <\/p>\n
unconscious.  Would the doctor be able to avoid such pain or distress by use <\/p>\n
of sedatives etc.?     In such a condition would it not be more appropriate to <\/p>\n
continue with the nasogastric feeding but not take any other active steps to <\/p>\n
combat any other illness which she may contract and which may lead to her <\/p>\n
death?\n<\/p>\n<\/p>\n
34.     Mr.   Andhyarujina   further   submitted   that   in   a   situation   like   that   of <\/p>\n
Aruna,   it   is   also   necessary   to   recognize   the   deep   agony   of   nurses   of   the <\/p>\n
hospital who have with deep care looked after her for over 37 years and who <\/p>\n
                                                                                         40<\/span><\/p>\n
may not appreciate the withdrawal of the life support.   It may be necessary <\/p>\n
that their views should be considered by the Court in some appropriate way.<\/p>\n
35.    Mr.   Andhyarujina,   in   the   course   of   his   submission   stated   that   some <\/p>\n
Courts in USA have observed that the view of a surrogate may be taken to <\/p>\n
be the view of the incompetent patient for deciding whether to withdraw the <\/p>\n
life support, though the House of Lords in Airedale’s case has not accepted <\/p>\n
this.  He submitted that relatives of Aruna do not seem to have cared for her <\/p>\n
and it is only the nursing staff  and medical attendants of KEM hospital who <\/p>\n
have looked after her for 37 years.   He has also submitted that though the <\/p>\n
humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion <\/p>\n
of the attending doctors and nursing staff which is more relevant in this case <\/p>\n
as they have looked after her for so many years.\n<\/p>\n<\/p>\n
36.    Mr.   Pallav   Shishodia,   learned   senior   counsel   for   the   Dean,   KEM <\/p>\n
hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi  in the <\/p>\n
matter and it is only the KEM hospital staff which could have filed such a <\/p>\n
writ petition.\n<\/p>\n<\/p>\n
37.    We have also heard learned counsel for the State of Maharashtra, Mr. <\/p>\n
Chinmoy   Khaldkar   and   other   assisting   counsel   whose   names   have   been <\/p>\n
                                                                                              41<\/span><\/p>\n
mentioned in this judgment.  They have been of great assistance to us as we <\/p>\n
are   deciding   a   very   sensitive   and   delicate   issue   which   while   requiring   a <\/p>\n
humanistic approach, also requires great case and caution to prevent misuse. <\/p>\n
We   were   informed  that   not  only   the  learned   counsel   who   argued   the   case <\/p>\n
before us, but also the assistants (whose names have been mentioned in the <\/p>\n
judgment) have done research on the subject for several weeks, and indeed <\/p>\n
this has made our task easier in deciding this case.   They therefore deserve <\/p>\n
our compliment and thanks.\n<\/p>\n
Legal Issues : Active and Passive Euthanasia<\/p>\n
38.    Coming   now   to   the   legal   issues   in   this   case,   it   may   be   noted   that <\/p>\n
euthanasia is of two types : active and passive.  Active euthanasia entails the <\/p>\n
use of lethal substances or forces to kill a person e.g. a lethal injection given <\/p>\n
to a person with terminal cancer who is in terrible agony.  Passive euthanasia <\/p>\n
entails   withholding   of   medical   treatment   for   continuance   of   life,   e.g. <\/p>\n
withholding of antibiotics where without giving it a patient is likely to die, <\/p>\n
or removing the heart lung machine, from a patient in coma. <\/p>\n
39.    The general legal position all over the world seems  to be that while <\/p>\n
active  euthanasia   is  illegal  unless  there  is  legislation   permitting   it,  passive <\/p>\n
                                                                                            42<\/span><\/p>\n
euthanasia is legal even without legislation provided certain conditions and <\/p>\n
safeguards are maintained.\n<\/p>\n<\/p>\n
40.     A further categorization of euthanasia is between voluntary euthanasia <\/p>\n
and non voluntary euthanasia.  Voluntary euthanasia is where the consent is <\/p>\n
taken   from   the   patient,   whereas   non   voluntary   euthanasia   is   where   the <\/p>\n
consent   is   unavailable   e.g.   when   the   patient   is   in   coma,   or   is   otherwise <\/p>\n
unable to give consent.   While there is no legal difficulty in the case of the <\/p>\n
former, the latter poses several problems, which we shall address.    <\/p>\n
ACTIVE EUTHANASIA <\/p>\n
41.     As already stated above active euthanasia is a crime all over the world <\/p>\n
except where permitted by legislation.   In India active euthanasia is illegal <\/p>\n
and a crime under section 302 or at least section 304 IPC.  Physician assisted <\/p>\n
suicide is a crime under section 306 IPC (abetment to suicide). <\/p>\n
42.     Active euthanasia is taking specific steps to cause the patient’s death, <\/p>\n
such   as   injecting   the   patient   with   some   lethal   substance,   e.g.   sodium <\/p>\n
pentothal which causes a person deep sleep in a few seconds, and the person <\/p>\n
instantaneously and painlessly dies in this deep sleep.<\/p>\n
                                                                                        43<\/span><\/p>\n
43.    A  distinction   is  sometimes  drawn between  euthanasia   and  physician <\/p>\n
assisted   dying,   the   difference   being   in  who  administers   the   lethal <\/p>\n
medication.  In euthanasia, a physician or third party administers it, while in <\/p>\n
physician assisted suicide it is the patient himself who does it, though on the <\/p>\n
advice of the doctor.   In many countries\/States the latter is legal while the <\/p>\n
former is not.\n<\/p>\n<\/p>\n
44.    The   difference   between   “active”   and   “passive”   euthanasia   is   that   in <\/p>\n
active   euthanasia,   something   is done to   end   the   patient’s   life’   while   in <\/p>\n
passive   euthanasia,   something   is not   done that   would   have   preserved   the <\/p>\n
patient’s life.\n<\/p>\n<\/p>\n
45.    An   important   idea   behind   this   distinction   is   that   in   “passive <\/p>\n
euthanasia” the doctors are not actively killing anyone; they are simply not <\/p>\n
saving him. While we usually applaud someone who saves another person’s <\/p>\n
life, we do not normally condemn someone for failing to do so. If one rushes <\/p>\n
into a burning building and carries someone out to safety, he will probably <\/p>\n
be called a hero. But if one sees a burning building and people screaming for <\/p>\n
help, and he stands on the sidelines — whether out of fear for his own safety, <\/p>\n
or   the   belief   that   an   inexperienced   and   ill-equipped   person   like   himself <\/p>\n
would only get in the way of the professional firefighters, or whatever — if <\/p>\n
                                                                                             44<\/span><\/p>\n
one does nothing, few would judge him for his inaction. One would surely <\/p>\n
not be prosecuted for homicide. (At least, not unless one started the fire in <\/p>\n
the first place.) <\/p>\n
46.      Thus, proponents of euthanasia say that while we can debate whether <\/p>\n
active   euthanasia   should   be   legal,   there   can   be   no   debate   about   passive <\/p>\n
euthanasia: You cannot prosecute someone for failing to save a life. Even if <\/p>\n
you think it would be good for people to do X, you cannot make it illegal for <\/p>\n
people   to not do   X,   or   everyone   in   the   country   who   did   not   do   X   today <\/p>\n
would have to be arrested.\n<\/p>\n<\/p>\n
47.      Some persons are of the view that the distinction is not valid.   They <\/p>\n
give the example of the old joke about the child who says to his teacher, “Do <\/p>\n
you   think   it’s   right   to   punish   someone   for   something   that   he   didn’t   do?” <\/p>\n
“Why, of course not,” the teacher replies. “Good,” the child says, “because I <\/p>\n
didn’t do my homework.”\n<\/p>\n<\/p>\n
48.      In fact we have many laws that penalize people for what they did not <\/p>\n
do.     A   person   cannot   simply   decide   not   to   pay   his   income   taxes,   or   not <\/p>\n
bother to send his\/her   children to school (where the law requires  sending <\/p>\n
them), or not to obey a policeman’s order to put down one’s gun.<\/p>\n
                                                                                              45<\/span><\/p>\n
49.    However,   we   are   of   the   opinion   that   the   distinction   is   valid,   as   has <\/p>\n
been   explained   in   some   details   by   Lord   Goff   in  Airedale’s  case   (infra) <\/p>\n
which we shall presently discuss.\n<\/p>\n
LEGISLATION   IN   SOME   COUNTRIES   RELATING   TO <\/p>\n
EUTHANASIA OR PHYSICIAN ASSISTED DEATH<\/p>\n
50.    Although   in   the   present   case   we   are   dealing   with   a   case   related   to <\/p>\n
passive euthanasia,  it would be of some interest  to note the legislations  in <\/p>\n
certain countries permitting active euthanasia.  These are given below.<\/p>\n
       Netherlands:\n<\/p>\n
\n       Euthanasia in the Netherlands is regulated by the “Termination of Life <\/p>\n
       on Request and Assisted Suicide (Review Procedures) Act”, 2002. It <\/p>\n
       states   that   euthanasia   and   physician-assisted   suicide   are   not <\/p>\n
       punishable   if   the   attending   physician   acts   in   accordance   with   the <\/p>\n
       criteria   of   due   care.   These   criteria   concern   the   patient’s   request,   the <\/p>\n
       patient’s   suffering   (unbearable   and   hopeless),   the   information <\/p>\n
       provided   to   the   patient,   the   presence   of   reasonable   alternatives, <\/p>\n
       consultation   of   another   physician   and   the   applied   method   of   ending <\/p>\n
       life.  To demonstrate their compliance, the Act requires physicians to <\/p>\n
       report euthanasia to a review committee.\n<\/p>\n
\n                                                                                      46<\/span><\/p>\n
   The   legal   debate   concerning   euthanasia   in   the   Netherlands   took   off <\/p>\n
   with   the   “Postma   case”   in   1973,   concerning   a   physician   who   had <\/p>\n
   facilitated the death of her mother following repeated explicit requests <\/p>\n
   for   euthanasia.     While   the   physician   was   convicted,   the   court’s <\/p>\n
   judgment set out criteria when a doctor would not be required to keep <\/p>\n
   a patient alive contrary to his will. This set of criteria was formalized <\/p>\n
   in the course of a number of court cases during the 1980s.<\/p>\n
   Termination   of   Life   on   Request   and   Assisted   Suicide   (Review  <\/p>\n
   Procedures) Act  took effect on April 1, 2002. It legalizes euthanasia <\/p>\n
   and   physician   assisted   suicide   in   very   specific   cases,   under   very <\/p>\n
   specific   circumstances.   The   law   was   proposed   by   Els   Borst,   the <\/p>\n
   minister   of   Health.   The   procedures   codified   in   the   law   had   been   a <\/p>\n
   convention of the Dutch medical community for over twenty years.<\/p>\n
   The   law   allows   a   medical   review   board   to   suspend   prosecution   of <\/p>\n
   doctors   who   performed   euthanasia   when   each   of   the   following <\/p>\n
   conditions is fulfilled:\n<\/p>\n
\n7 the patient’s suffering is unbearable with no prospect of improvement<\/p>\n
7 the patient’s request for euthanasia must be voluntary and persist over <\/p>\n
   time   (the   request   cannot   be   granted   when   under   the   influence   of <\/p>\n
   others, psychological illness, or drugs)<\/p>\n
                                                                                          47<\/span><\/p>\n
7 the patient must be fully aware of his\/her condition, prospects and <\/p>\n
   options<\/p>\n
7 there must be consultation with at least one other independent doctor <\/p>\n
   who needs to confirm the conditions mentioned above<\/p>\n
7 the death must be carried out in a medically appropriate fashion by the <\/p>\n
   doctor or patient, in which case the doctor must be present<\/p>\n
7 the patient is at least 12 years old (patients between 12 and 16 years of <\/p>\n
   age require the consent of their parents)<\/p>\n
   The   doctor   must   also   report   the   cause   of   death   to   the   municipal <\/p>\n
   coroner in accordance with the relevant provisions of the Burial and <\/p>\n
   Cremation Act. A regional review committee assesses whether a case <\/p>\n
   of termination of life on request or assisted suicide complies with the <\/p>\n
   due   care   criteria.   Depending   on   its   findings,   the   case   will   either   be <\/p>\n
   closed or, if the conditions are not met, brought to the attention of the <\/p>\n
   Public   Prosecutor.   Finally,   the   legislation   offers   an   explicit <\/p>\n
   recognition of the validity of a written declaration of the will of the <\/p>\n
   patient   regarding   euthanasia   (a   “euthanasia   directive”).   Such <\/p>\n
   declarations   can   be   used   when   a   patient   is   in   a   coma   or   otherwise <\/p>\n
   unable to state if they wish to be euthanized.\n<\/p>\n
\n                                                                                          48<\/span><\/p>\n
   Euthanasia remains a criminal offense in cases not meeting the law’s <\/p>\n
   specific   conditions,   with   the   exception   of   several   situations   that   are <\/p>\n
   not   subject   to   the   restrictions   of   the   law   at   all,   because   they   are <\/p>\n
   considered normal medical practice.  These are :<\/p>\n
7 stopping or not starting a medically useless (futile) treatment<\/p>\n
7 stopping or not starting a treatment at the patient’s request<\/p>\n
7 speeding   up   death   as   a   side-effect   of   treatment   necessary   for <\/p>\n
   alleviating serious suffering<\/p>\n
   Euthanasia of children under the age of 12 remains technically illegal; <\/p>\n
   however,   Dr.   Eduard   Verhagen   has   documented   several   cases   and, <\/p>\n
   together with colleagues and prosecutors, has developed a protocol to <\/p>\n
   be   followed   in   those   cases.   Prosecutors   will   refrain   from   pressing <\/p>\n
   charges if this Groningen Protocol is followed.<\/p>\n
   Switzerland:\n<\/p>\n
\n   Switzerland  has an unusual position on assisted suicide: it is legally <\/p>\n
   permitted   and   can   be   performed   by   non-physicians.     However, <\/p>\n
   euthanasia   is   illegal,   the   difference   between   assisted   suicide   and <\/p>\n
   euthanasia being that while in the former the patient administers the <\/p>\n
                                                                                       49<\/span><\/p>\n
lethal   injection  himself,   in   the   latter   a   doctor   or   some   other   person <\/p>\n
administers it.\n<\/p>\n
\nArticle 115 of the Swiss penal code, which came into effect in 1942 <\/p>\n
(having been approved in 1937), considers assisting suicide a crime if, <\/p>\n
and only if, the motive is selfish.  The code does not give physicians a <\/p>\n
special   status   in   assisting   suicide;   although,   they   are   most   likely   to <\/p>\n
have   access   to   suitable   drugs.     Ethical   guidelines   have   cautioned <\/p>\n
physicians against prescribing deadly drugs. <\/p>\n
Switzerland seems to be the only country in which the law limits the <\/p>\n
circumstances   in   which   assisted   suicide   is   a   crime,   thereby <\/p>\n
decriminalising it in other cases, without requiring the involvement of <\/p>\n
a   physician.   Consequently,   non-physicians   have   participated   in <\/p>\n
assisted   suicide.           However,   legally,   active   euthanasia   e.g. <\/p>\n
administering a lethal injection by a doctor or some other person to a <\/p>\n
patient   is   illegal   in   Switzerland   (unlike   in   Holland   where   it   is   legal <\/p>\n
under certain conditions).\n<\/p>\n
\nThe Swiss law is unique because (1) the recipient need not be a Swiss <\/p>\n
national,   and   (2)   a   physician   need   not   be   involved.     Many   persons <\/p>\n
from   other   countries,   especially   Germany,   go   to   Switzerland   to <\/p>\n
undergo euthanasia.\n<\/p>\n
\n                                                                                  50<\/span><\/p>\n
Belgium:\n<\/p>\n
\nBelgium   became   the   second   country   in   Europe   after   Netherlands   to <\/p>\n
legalize the practice of euthanasia in September 2002.<\/p>\n
The   Belgian   law   sets   out   conditions   under   which   suicide   can   be <\/p>\n
practised without giving doctors a licence to kill.<\/p>\n
Patients wishing to end their own lives must be conscious when the <\/p>\n
demand is made and repeat their request for euthanasia. They have to <\/p>\n
be   under   “constant   and   unbearable   physical   or   psychological   pain” <\/p>\n
resulting from an accident or incurable illness.<\/p>\n
The   law   gives   patients   the   right   to   receive   ongoing   treatment   with <\/p>\n
painkillers — the authorities have to pay to ensure that poor or isolated <\/p>\n
patients do not ask to die because  they do not have money  for such <\/p>\n
treatment.\n<\/p>\n
\nUnlike the Dutch legislation, minors cannot seek assistance to die.<\/p>\n
In the case of someone who is not in the terminal stages of illness, a <\/p>\n
third medical opinion must be sought.\n<\/p>\n
\nEvery mercy killing case will have to be filed at a special commission <\/p>\n
to decide if the doctors in charge are following the regulations.<\/p>\n
                                                                                    51<\/span><\/p>\n
U.K., Spain, Austria, Italy, Germany, France, etc.<\/p>\n
In   none   of   these   countries   is   euthanasia   or   physician   assisted   death <\/p>\n
legal.  In January 2011 the French Senate defeated by a 170-142 vote <\/p>\n
a bill seeking to legalize euthanasia.   In England, in May 2006 a bill <\/p>\n
allowing   physician   assisted  suicide,  was  blocked,  and  never became <\/p>\n
law.\n<\/p>\n
United States of America:\n<\/p>\n
\nActive   Euthanasia   is   illegal   in   all   states   in   U.S.A.,   but   physician <\/p>\n
assisted   dying   is   legal   in   the   states   of   Oregon,   Washington   and <\/p>\n
Montana.     As   already   pointed   out   above,   the   difference   between <\/p>\n
euthanasia and physician assisted suicide lies in who administers the <\/p>\n
lethal   medication.   In   the   former,   the   physician   or   someone   else <\/p>\n
administers it, while in the latter the patient himself does so, though <\/p>\n
on the advice of the doctor.\n<\/p>\n
Oregon:\n<\/p>\n
\nOregon   was   the   first   state   in   U.S.A.   to   legalize   physician   assisted <\/p>\n
death.\n<\/p>\n
\n                                                                                         52<\/span><\/p>\n
   The Oregon legislature enacted the Oregon Death with Dignity Act, in <\/p>\n
   1997.     Under   the   Death   With   Dignity   Act,   a   person   who   sought <\/p>\n
   physician-assisted suicide would have to meet certain criteria:  <\/p>\n
7 He must be an Oregon resident, at least 18 years old, and must have <\/p>\n
   decision making capacity.\n<\/p>\n
\n7 The person must be terminally ill, having six months or less to live.<\/p>\n
7 The   person   must   make   one   written   and   two   oral   requests   for <\/p>\n
   medication to end his\/her life, the written one substantially in the form <\/p>\n
   provided   in  the  Act,  signed,   dated,  witnessed  by  two  persons  in  the <\/p>\n
   presence   of  the   patient   who   attest   that   the   person   is   capable,   acting <\/p>\n
   voluntarily   and   not   being   coerced   to   sign   the   request.     There   are <\/p>\n
   stringent qualifications as to who may act as a witness.<\/p>\n
7 The patient’s decision must be an `informed’ one, and the attending <\/p>\n
   physician   is   obligated   to   provide   the   patient   with   information   about <\/p>\n
   the   diagnosis,   prognosis,   potential   risks,   and   probable   consequences <\/p>\n
   of   taking   the   prescribed   medication,   and   alternatives,   including,   but <\/p>\n
   not limited to comfort  care, hospice care and pain control.   Another <\/p>\n
   physician   must  confirm the   diagnosis,   the   patient’s   decision  making <\/p>\n
   capacity, and voluntariness of the patient’s decisions. <\/p>\n
                                                                                     53<\/span><\/p>\n
7 Counselling   has   to   be   provided   if   the   patient   is   suffering   from <\/p>\n
   depression or a mental disorder which may impact his judgment.<\/p>\n
7 There has to be a waiting period of 15 days, next of kin have to be <\/p>\n
   notified, and State authorities have to be informed.<\/p>\n
7 The patient can rescind his decision at any time <\/p>\n
   In response to concerns that patients with depression may seek to end <\/p>\n
   their lives, the 1999 amendment provides that the attending physician <\/p>\n
   must   determine   that   the   patient   does   not   have   `depression   causing <\/p>\n
   impaired judgment’ before prescribing the medication.<\/p>\n
   Under   the   law,   a   person   who   met   all   requirements   could   receive   a <\/p>\n
   prescription  of a barbiturate  that would be sufficient to cause death. <\/p>\n
   However,   the   lethal   injection   must   be   administered   by   the   patient <\/p>\n
   himself, and physicians are prohibited from administering it.<\/p>\n
   The   landmark   case   to   declare   that   the   practice   of   euthanasia   by <\/p>\n
   doctors to help their patients shall not be taken into cognizance was <\/p>\n
   Gonzalez vs Oregon decided in 2006.\n<\/p>\n
\n   After   the   Oregon   Law   was   enacted   about   200   persons   have   had <\/p>\n
   euthanasia in Oregon.\n<\/p>\n
\n                                                                                 54<\/span><\/p>\n
Washington:\n<\/p>\n
\nWashington was the second state in U.S.A. which allowed the practice <\/p>\n
of   physician   assisted   death   in   the   year   2008   by   passing   the <\/p>\n
Washington Death with Dignity Act, 2008.\n<\/p>\n
Montana:\n<\/p>\n
\nMontana was the third state (after Oregon and Washington) in U.S.A. <\/p>\n
to  legalize   physician   assisted  deaths,  but  this  was  done by  the State <\/p>\n
judiciary and not the legislature.  On December 31, 2009, the Montana <\/p>\n
Supreme Court delivered its verdict in the case of Baxter v. Montana <\/p>\n
permitting   physicians   to   prescribe   lethal   indication.    The   court   held <\/p>\n
that   there   was   “nothing   in   Montana   Supreme   Court   precedent   or <\/p>\n
Montana   statutes   indicating   that   physician   aid   in   dying   is   against <\/p>\n
public policy.”\n<\/p>\n
Other States in U.S.A.:\n<\/p>\n
\nIn no other State in U.S.A. is euthanasia or physician assisted death <\/p>\n
legal.  Michigan banned euthanasia and assisted suicide in 1993, after <\/p>\n
Dr.   Kevorkian   (who   became   known   as   `doctor   death’)   began <\/p>\n
encouraging and assisting in suicides.   He was convicted in 1999 for <\/p>\n
                                                                                  55<\/span><\/p>\n
an   assisted   suicide   displayed   on   television,   his   medical   licence <\/p>\n
cancelled, and he spent 8 years in jail.\n<\/p>\n
In 1999 the State of Texas enacted the Texas Futile Care Law which <\/p>\n
entitles Texas hospitals and doctors, in some situations, to withdraw <\/p>\n
life support measures, such as mechanical respiration, from terminally <\/p>\n
ill patient when such treatment is considered futile and inappropriate. <\/p>\n
However,   Texas   has   not   legalized   euthanasia   or   physician   assisted <\/p>\n
death.   In California, though 75 of people support physician assisted <\/p>\n
death, the issue is highly controversial in the State legislature.   Forty <\/p>\n
States in USA have enacted laws which explicitly make it a crime to <\/p>\n
provide another with the means of taking his or her life.<\/p>\n
In   1977   California   legalized   living   wills,   and   other   States   soon <\/p>\n
followed   suit.     A   living   will   (also   known   as   advance   directive   or <\/p>\n
advance   decision)   is   an   instruction   given   by   an   individual   while <\/p>\n
conscious specifying what action should be taken in the event he\/she <\/p>\n
is unable to make a decision due to illness or incapacity, and appoints <\/p>\n
a  person  to take  such  decisions   on his\/her  behalf.     It  may include  a <\/p>\n
directive to withdraw life support on certain eventualities.<\/p>\n
                                                                                      56<\/span><\/p>\n
Canada:\n<\/p>\n
\nIn Canada, physician assisted suicide is illegal vide Section 241(b) of <\/p>\n
the Criminal Code of Canada.\n<\/p>\n
\nThe   leading   decision   of   the   Canadian   Supreme   Court   in   this <\/p>\n
connection   is  Sue   Rodriguez     v.     British   Columbia   (Attorney  <\/p>\n
General),  (1993)   3   SCR   519.     Rodriguez,   a   woman   of   43,   was <\/p>\n
diagnosed  with Amyotrophic Lateral Sclerosis (ALS), and requested <\/p>\n
the Canadian Supreme Court to allow someone  to aid her in ending <\/p>\n
her life.  Her condition was deteriorating rapidly, and the doctors told <\/p>\n
her that she would soon lose the ability to swallow, speak, walk, and <\/p>\n
move   her   body   without   assistance.     Thereafter   she   would   lose   her <\/p>\n
capacity to breathe without a respirator, to eat without a gastrotomy, <\/p>\n
and would eventually be confined to bed.   Her life expectancy was 2 <\/p>\n
to 14 months.\n<\/p>\n
The   Canadian   Supreme   Court   was   deeply   divided.     By   a   5   to   4 <\/p>\n
majority   her   plea   was   rejected.     Justice   Sopinka,   speaking   for   the <\/p>\n
majority (which included Justices La Forest, Gonthier, Iacobucci and <\/p>\n
Major) observed :\n<\/p>\n<\/p>\n
               “Sanctity   of   life   has   been   understood   historically <\/p>\n
       as   excluding   freedom   of   choice   in   the   self   infliction   of <\/p>\n
                                                                                             57<\/span><\/p>\n
                death,   and   certainly   in   the   involvement   of   others   in <\/p>\n
                carrying   out   that   choice.     At   the   very   least,   no   new <\/p>\n
                consensus  has   emerged   in  society  opposing   the  right  of <\/p>\n
                the   State   to   regulate   the   involvement   of   others   in <\/p>\n
                exercising power over individuals ending their lives.”<\/p>\n
        The   minority,   consisting   of   Chief   Justice   Lamer   and   Justices <\/p>\n
        L’Heureux-Dube, Cory and McLachlin, dissented.<\/p>\n<\/blockquote>\n
PASSIVE EUTHANASIA<\/p>\n
51.     Passive   euthanasia   is   usually   defined   as   withdrawing   medical <\/p>\n
treatment   with   a   deliberate   intention     of   causing   the   patient’s   death.     For <\/p>\n
example, if a patient requires kidney dialysis to survive, not giving dialysis <\/p>\n
although   the   machine   is   available,   is   passive   euthanasia.   Similarly,   if   a <\/p>\n
patient is in coma or on a heart lung machine, withdrawing of the machine <\/p>\n
will ordinarily result in passive euthanasia.  Similarly not giving life saving <\/p>\n
medicines   like   antibiotics   in   certain   situations   may   result   in   passive <\/p>\n
euthanasia.   Denying food to a person in coma or PVS may also amount to <\/p>\n
passive euthanasia.\n<\/p>\n<\/p>\n
52.     As   already   stated   above,   euthanasia   can   be   both   voluntary   or   non <\/p>\n
voluntary.     In   voluntary   passive   euthanasia   a   person   who   is   capable   of <\/p>\n
deciding for himself decides that he would prefer to die (which may be for <\/p>\n
                                                                                                      58<\/span><\/p>\n
various reasons e.g., that he is in great pain or that the money being spent on <\/p>\n
his treatment should instead be given to his family who are in greater need, <\/p>\n
etc.), and for this purpose he consciously and of his own free will refuses to <\/p>\n
take life saving medicines.  In India, if a person consciously and voluntarily <\/p>\n
refuses to take life saving medical treatment it is not a crime.   Whether not <\/p>\n
taking food consciously and voluntarily with the aim of ending one’s life is a <\/p>\n
crime under section 309 IPC (attempt to commit suicide) is a question which <\/p>\n
need not be decided in this case.\n<\/p>\n<\/p>\n
53.     Non voluntary passive euthanasia implies that the person is not in a <\/p>\n
position to decide for himself e.g., if he is in coma or PVS.  The present is a <\/p>\n
case   where   we   have   to   consider   non   voluntary   passive   euthanasia   i.e. <\/p>\n
whether   to   allow   a   person   to   die   who   is   not   in   a   position   to   give   his\/her <\/p>\n
consent.\n<\/p>\n<\/p>\n
54.      There is a plethora of case law on the subject   of the Courts all over <\/p>\n
the world relating to both active and passive euthanasia.   It is not necessary <\/p>\n
to   refer   in   detail   to   all   the   decisions   of   the   Courts   in   the   world       on   the <\/p>\n
subject   of   euthanasia   or   physically   assisted   dead   (p.a.d.)   but   we   think   it <\/p>\n
appropriate to refer in detail to certain landmark decisions, which have laid <\/p>\n
down the law on the subject.\n<\/p>\n
\n                                                                                               59<\/span><\/p>\n
THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82) <\/p>\n
(H.L.)<\/p>\n
55.       In the  Airedale  case decided by the House of Lords in the U.K., the <\/p>\n
facts were that one Anthony Bland aged about 17 went to the Hillsborough <\/p>\n
Ground on 15th  April 1989 to support the Liverpool Football Club.   In the <\/p>\n
course  of the  disaster  which  occurred  on that  day,   his  lungs  were  crushed <\/p>\n
and punctured and the supply to his brain was interrupted.   As a result, he <\/p>\n
suffered   catastrophic   and   irreversible   damage   to   the   higher   centres   of   the <\/p>\n
brain.  For three years, he was in a condition known as `persistent vegetative <\/p>\n
state (PVS).  This state arises from the destruction of the cerebral cortex on <\/p>\n
account   of   prolonged   deprivation   of   oxygen,   and   the   cerebral   cortex   of <\/p>\n
Anthony   had   resolved   into   a   watery   mass.     The   cortex   is   that   part   of   the <\/p>\n
brain which is the seat of cognitive function and sensory capacity.  Anthony <\/p>\n
Bland could not see, hear or feel anything.   He could not communicate  in <\/p>\n
any way.   His consciousness, which is an essential feature of an individual <\/p>\n
personality, had departed forever.  However, his brain-stem, which controls <\/p>\n
the   reflective   functions   of  the  body,   in  particular   the   heart   beat,   breathing <\/p>\n
and   digestion,   continued   to   operate.     He   was  in  persistent   vegetative   state <\/p>\n
(PVS)   which   is   a   recognized   medical   condition   quite   distinct   from   other <\/p>\n
                                                                                            60<\/span><\/p>\n
conditions   sometimes   known   as   “irreversible   coma”,   “the   Guillain-Barre <\/p>\n
syndrome”, “the locked-in syndrome” and “brain death”. <\/p>\n
56.     The distinguishing characteristic of PVS is that the brain stem remains <\/p>\n
alive   and   functioning   while   the   cortex   has   lost   its   function   and   activity. <\/p>\n
Thus   the   PVS   patient   continues   to   breathe   unaided   and   his   digestion <\/p>\n
continues to function.   But although his eyes are open, he cannot see.   He <\/p>\n
cannot hear.  Although capable of reflex movement, particularly in response <\/p>\n
to painful stimuli, the patient is uncapable of voluntary movement and can <\/p>\n
feel no pain.  He cannot taste or smell.  He cannot speak or communicate in <\/p>\n
any   way.     He   has   no   cognitive   function   and   thus   can   feel   no   emotion, <\/p>\n
whether   pleasure   or   distress.     The   absence   of   cerebral   function   is   not   a <\/p>\n
matter  of surmise;  it can be scientifically  demonstrated.    The  space  which <\/p>\n
the brain should occupy is full of watery fluid.<\/p>\n
57.     In order to maintain Mr. Bland in his condition, feeding and hydration <\/p>\n
were achieved by artificial means of a nasogastric tube while the excretory <\/p>\n
functions were regulated by a catheter and enemas.   According to eminent <\/p>\n
medical opinion, there was no prospect whatsoever that he would ever make <\/p>\n
a recovery from his condition, but there was every likelihood that he would <\/p>\n
                                                                                          61<\/span><\/p>\n
maintain   this   state   of   existence   for   many   years   to   come   provided   the <\/p>\n
artificial means of medical care was continued. <\/p>\n
58.     In this state of affairs the medical  men in charge of Anthony Bland <\/p>\n
case   took   the   view,   which   was   supported   by   his   parents,   that   no   useful <\/p>\n
purpose   would   be   served   by   continuing   medical   care,   and   that   artificial <\/p>\n
feeding   and   other   measures   aimed   at   prolonging   his   existence   should   be <\/p>\n
stopped.  Since however, there was a doubt as to whether this course might <\/p>\n
constitute   a   criminal   offence,   the   hospital   authorities   sought   a   declaration <\/p>\n
from the British High Court to resolve these doubts. <\/p>\n
59.     The declaration was granted by the Family Division of the High Court <\/p>\n
on 19.11.1992 and that judgment was affirmed by the Court of Appeal on <\/p>\n
9.12.1992.   A further appeal  was made  to the  House of Lords  which then <\/p>\n
decided the case.\n<\/p>\n<\/p>\n
60.     The   broad   issued   raised   before   the   House   of   Lords   in   the  Airedale <\/p>\n
case (supra) was “In what circumstances, if ever, can those having a duty to <\/p>\n
feed an invalid lawfully stop doing so?”  In fact this is precisely the question <\/p>\n
raised in the present case of Aruna Shanbaug  before us.  <\/p>\n
                                                                                                 62<\/span><\/p>\n
61.     In  Airedale’s  case   (supra),   Lord   Keith   of   Kinkel,   noted   that   it   was <\/p>\n
unlawful to administer treatment to an adult who is conscious and of sound <\/p>\n
mind, without his consent. Such a person is completely at liberty to decline <\/p>\n
to undergo treatment, even if the result of his doing so will be that he will <\/p>\n
die.   This   extends   to   the   situation   where   the   person   in   anticipation   of   his <\/p>\n
entering into a condition such as PVS, gives clear instructions that in such an <\/p>\n
event   he   is   not   to   be   given   medical   care,   including   artificial   feeding, <\/p>\n
designed to keep him alive.\n<\/p>\n<\/p>\n
62.     It   was   held   that   if   a   person,   due   to   accident   or   some   other   cause <\/p>\n
becomes   unconscious   and   is   thus   not   able   to   give   or   withhold   consent   to <\/p>\n
medical treatment, in that situation it is lawful for medical men to apply such <\/p>\n
treatment   as   in   their   informed   opinion   is   in   the  best   interests   of   the <\/p>\n
unconscious patient. That is what happened in the case of Anthony   Bland <\/p>\n
when he was first dealt with by the emergency services  and later  taken to <\/p>\n
hospital.\n<\/p>\n<\/p>\n
63.     When   the   incident   happened   the   first   imperative   was   to   prevent <\/p>\n
Anthony from dying, as he would certainly have done in the absence of the <\/p>\n
steps   that   were   taken.   For   a   time,   no   doubt,   there   was   some   hope   that   he <\/p>\n
might   recover   sufficiently   for   him   to   be   able   to   live   a   life   that   had   some <\/p>\n
                                                                                                  63<\/span><\/p>\n
meaning.   Some   patients   who   have   suffered   damage   to   the   cerebral   cortex <\/p>\n
have,   indeed,   made   a   complete   recovery.   It   all   depends   on   the   degree   of <\/p>\n
damage. But sound medical opinion takes the view that if a P.V.S. patient <\/p>\n
shows no signs of recovery after six months, or at most a year, then there is <\/p>\n
no prospect whatever of any recovery.\n<\/p>\n<\/p>\n
64.     There are techniques available which make it possible to ascertain the <\/p>\n
state   of   the   cerebral   cortex,   and   in  Anthony   Bland’s  case   these   indicated <\/p>\n
that,   it   had   degenerated   into   a   mass   of   watery   fluid.     In   this   situation   the <\/p>\n
question before the House of Lords was whether the doctors could withdraw <\/p>\n
medical treatment or feeding Anthony Bland thus allowing him to die. <\/p>\n
65.     It was held by Lord Keith that a medical practitioner is under no duty <\/p>\n
to   continue   to   treat   such   a   patient   where   a   large   body   of   informed   and <\/p>\n
responsible medical opinion is to the effect that no benefit at all would be <\/p>\n
conferred by continuance of the treatment.   Existence in a vegetative state <\/p>\n
with   no   prospect   of   recovery   is   by   that   opinion   regarded   as   not   being   of <\/p>\n
benefit to the patient.\n<\/p>\n<\/p>\n
66.     Given that existence in the persistent vegetative state is of no benefit <\/p>\n
to the patient, the House of Lords then considered whether the principle of <\/p>\n
                                                                                                  64<\/span><\/p>\n
the sanctity of life which is the concern of the State (and the Judiciary is one <\/p>\n
of the arms of the State) required the Court to hold that medical treatment to <\/p>\n
Bland could not be discontinued.\n<\/p>\n<\/p>\n
67.     Lord   Keith   observed   that   the   principle   of   sanctity   of   life   is   not   an <\/p>\n
absolute one.   For instance, it does not compel the medical practitioner on <\/p>\n
pain   of   criminal   sanction   to   treat   a   patient,   who   will   die,   if   he   does   not, <\/p>\n
according to the express wish of the patient. It does not authorize forcible <\/p>\n
feeding   of   prisoners   on   hunger   strike.   It   does   not   compel   the   temporary <\/p>\n
keeping alive of patients who are terminally ill where to do so would merely <\/p>\n
prolong   their  suffering.     On  the  other   hand,  it  forbids  the  taking  of  active <\/p>\n
measures   to   cut   short   the   life   of   a   terminally-ill   patient   (unless   there   is <\/p>\n
legislation which permits it).\n<\/p>\n<\/p>\n
68.       Lord   Keith   observed   that   although   the   decision   whether   or   not   the <\/p>\n
continued treatment and cure of a PVS patient confers any benefit on him is <\/p>\n
essentially one for the medical practitioners in charge of his case to decide, <\/p>\n
as a matter  of routine the hospital\/medical practitioner  should apply to the <\/p>\n
Family   Division   of   the   High   Court   for   endorsing   or   reversing   the   said <\/p>\n
decision.  This is in the interest of the protection of the patient, protection of <\/p>\n
the doctors, and for the reassurance of the patient’s family and the public.  <\/p>\n
                                                                                                    65<\/span><\/p>\n
69.     In  Airdale’s  case (Supra) another Judge on the Bench, Lord Goff of <\/p>\n
Chievely observed:-\n<\/p>\n<\/p>\n
            “The   central   issue   in   the   present   case   has   been   aptly <\/p>\n
            stated by the Master of the Rolls to be whether artificial <\/p>\n
            feeding   and   antibiotic   drugs   may   lawfully   be   withheld <\/p>\n
            from an insensate patient with no hope of recovery when <\/p>\n
            it   is   known   that   if   that   is   done   the   patient   will   shortly <\/p>\n
            thereafter   die.   The   Court   of   Appeal,   like   the   President, <\/p>\n
            answered  this  question  generally   in the  affirmative,  and <\/p>\n
            (in   the   declarations   made   or   approved   by   them) <\/p>\n
            specifically also in the affirmative in relation to Anthony <\/p>\n
            Bland   .   I   find   myself   to   be   in   agreement   with   the <\/p>\n
            conclusions   so   reached   by   all   the   judges   below, <\/p>\n
            substantially   for   the   reasons   given   by   them.   But   the <\/p>\n
            matter is of such importance that I propose to express my <\/p>\n
            reasons in my own words.\n<\/p><\/blockquote>\n
\n            I start with the simple fact that, in law, Anthony is still <\/p>\n
            alive.   It   is   true   that   his   condition   is   such   that   it   can   be <\/p>\n
            described   as   a   living   death;   but   he   is   nevertheless   still <\/p>\n
            alive.   This   is   because,   as   a   result   of   developments   in <\/p>\n
            modern medical technology, doctors no longer associate <\/p>\n
            death   exclusively   with   breathing   and   heart   beat,   and   it <\/p>\n
            has   come   to   be   accepted   that   death   occurs   when   the <\/p>\n
            brain, and in particular the brain stem, has been destroyed <\/p>\n
            (see   Professor   Ian   Kennedy’s   Paper   entitled   “Switching <\/p>\n
            off   Life   Support   Machines:   The   Legal   Implications” <\/p>\n
            reprinted in Treat Me Right, Essays in Medical Law and <\/p>\n
            Ethics, (1988)), especially at pp. 351-2, and the material <\/p>\n
            there   cited).   There   has   been   no  dispute   on   this   point   in <\/p>\n
            the present case, and it is unnecessary for me to consider <\/p>\n
            it   further.   The   evidence   is   that   Anthony’s   brain   stem   is <\/p>\n
            still   alive   and   functioning   and   it   follows   that,   in   the <\/p>\n
            present   state   of   medical   science,   he   is   still   alive   and <\/p>\n
            should be so regarded as a matter of law.<\/p><\/blockquote>\n
            It is on this basis that I turn to the applicable principles of <\/p>\n
            law.   Here,   the   fundamental   principle   is   the   principle   of <\/p>\n
                                                                               66<\/span><\/p>\n
the sanctity of human life – a principle long recognized <\/p>\n
not only in our own society but also in most,  if not all, <\/p>\n
civilized   societies   throughout   the   modern   world,   as   is <\/p>\n
indeed   evidenced   by   its   recognition   both   in   article   2   of <\/p>\n
the European Convention of Human Rights, and in article <\/p>\n
6   of   the   International   Covenant   of   Civil   and   Political <\/p>\n
Rights.\n<\/p>\n
\nBut   this   principle,   fundamental   though   it   is,   is   not <\/p>\n
absolute.   Indeed   there   are   circumstances   in   which   it   is <\/p>\n
lawful to take another man’s life, for example by a lawful <\/p>\n
act   of   self-defence,   or   (in   the   days   when   capital <\/p>\n
punishment   was   acceptable   in   our   society)   by   lawful <\/p>\n
execution.   We   are   not   however   concerned   with   cases <\/p>\n
such   as   these.   We   are   concerned   with   circumstances   in <\/p>\n
which   it   may   be   lawful   to   withhold   from   a   patient <\/p>\n
medical treatment or care by means of which his life may <\/p>\n
be prolonged. But here too there is no absolute rule that <\/p>\n
the patient’s life must be prolonged by such treatment or <\/p>\n
care, if available, regardless of the circumstances.<\/p>\n
First,   it   is   established   that   the   principle   of   self-<\/p>\n
determination requires that respect must  be given to the <\/p>\n
wishes of the patient, so that if an adult patient of sound <\/p>\n
mind   refuses,   however   unreasonably,   to   consent   to <\/p>\n
treatment   or   care   by   which   his   life   would   or   might   be <\/p>\n
prolonged, the doctors responsible for his care must give <\/p>\n
effect to his wishes, even though they do not consider it <\/p>\n
to be in his best interests to do so (see Schloendorff   v . <\/p>\n
Society   of   New   York   Hospital   105   N.E.   92,   93,   per <\/p>\n
Cardozo  J. (1914);  S.   v . McC. (Orse  S.) and  M (D.S. <\/p>\n
Intervene); W  v . W [1972] A.C. 24, 43, per Lord Reid; <\/p>\n
and   Sidaway     v   .   Board   of   Governors   of   the   Bethlem <\/p>\n
Royal   Hospital   and   the   Maudsley   Hospital   [1985]   AC <\/p>\n
871, 882, per Lord Scarman). To this extent, the principle <\/p>\n
of the sanctity of human life must yield to the principle of <\/p>\n
self- determination (see Court of Appeal Transcript in the <\/p>\n
present   case,   at   p.   38F   per   Hoffmann   L.J.),   and,   for <\/p>\n
present   purposes   perhaps   more   important,   the   doctor’s <\/p>\n
duty   to   act   in   the   best   interests   of   his   patient   must <\/p>\n
                                                                                  67<\/span><\/p>\n
likewise be qualified. On this basis, it has been held that <\/p>\n
a   patient   of   sound   mind   may,   if   properly   informed, <\/p>\n
require   that   life   support   should   be   discontinued:   see <\/p>\n
Nancy B.    v. Hotel  Dieu de Quebec  (1992) 86 D.L.R. <\/p>\n
(4th) 385. Moreover the same principle applies where the <\/p>\n
patient’s refusal to give his consent has been expressed at <\/p>\n
an   earlier   date,   before   he   became   unconscious   or <\/p>\n
otherwise incapable of communicating it; though in such <\/p>\n
circumstances  especial  care  may be necessary to ensure <\/p>\n
that   the   prior   refusal   of   consent   is   still   properly   to   be <\/p>\n
regarded   as   applicable  in  the  circumstances  which  have <\/p>\n
subsequently occurred (see, e.g. In re T. (Adult: Refusal <\/p>\n
of treatment) [1992] 3 W.L.R. 782). I wish to add that, in <\/p>\n
cases   of   this   kind,   there   is   no   question   of   the   patient <\/p>\n
having   committed   suicide,   nor   therefore   of   the   doctor <\/p>\n
having aided or abetted him in doing so. It is simply that <\/p>\n
the patient has, as he is entitled to do, declined to consent <\/p>\n
to   treatment   which   might   or   would   have   the   effect   of <\/p>\n
prolonging   his   life,   and   the   doctor   has,   in   accordance <\/p>\n
with his duty, complied with his patient’s wishes.<\/p>\n
But   in   many   cases   not   only   may   the   patient   be   in   no <\/p>\n
condition to be able to say whether or not he consents to <\/p>\n
the relevant treatment or care, but also he may have given <\/p>\n
no prior indication of his wishes with regard to it. In the <\/p>\n
case of a child who is a ward of court, the court itself will <\/p>\n
decide whether medical treatment should be provided in <\/p>\n
the   child’s   best   interests,   taking   into   account   medical <\/p>\n
opinion. But the court cannot give its consent on behalf <\/p>\n
of an adult patient who is incapable of himself deciding <\/p>\n
whether   or   not   to   consent   to   treatment.   I   am   of   the <\/p>\n
opinion that  there is nevertheless no absolute obligation <\/p>\n
upon the doctor who has the patient in his care to prolong <\/p>\n
his life, regardless of the circumstances. Indeed, it would <\/p>\n
be most startling, and could lead to the most adverse and <\/p>\n
cruel   effects   upon   the  patient,   if   any   such   absolute   rule <\/p>\n
were   held   to   exist.   It   is   scarcely   consistent   with   the <\/p>\n
primacy   given   to   the   principle   of   self-determination   in <\/p>\n
those   cases   in   which   the   patient   of   sound   mind   has <\/p>\n
declined to give his consent, that the law should provide <\/p>\n
                                                                                68<\/span><\/p>\n
no   means   of   enabling   treatment   to   be   withheld   in <\/p>\n
appropriate   circumstances   where   the   patient   is   in   no <\/p>\n
condition to indicate, if that was his wish, that he did not <\/p>\n
consent to it. The point was put forcibly in the judgment <\/p>\n
of   the   Supreme   Judicial   Court   of   Massachusetts   in <\/p>\n
Superintendent   of   Belchertown   State   School     v. <\/p>\n
Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows:<\/p>\n
“To presume that the incompetent person must always be <\/p>\n
subjected   to   what   many   rational   and   intelligent   persons <\/p>\n
may   decline   is   to   downgrade   the   status   of   the <\/p>\n
incompetent   person   by   placing   a   lesser   value   on   his <\/p>\n
intrinsic human worth and vitality.”\n<\/p>\n
\nI must however stress, at this point, that the law draws a <\/p>\n
crucial   distinction   between   cases   in   which   a   doctor <\/p>\n
decides not to provide, or to continue to provide, for his <\/p>\n
patient   treatment   or   care   which   could   or   might   prolong <\/p>\n
his   life,  and  those  in  which  he  decides,  for  example  by <\/p>\n
administering a lethal drug, actively to bring his patient’s <\/p>\n
life   to   an   end.   As   I   have   already   indicated,   the   former <\/p>\n
may be lawful, either because the doctor is giving effect <\/p>\n
to   his   patient’s   wishes   by   withholding   the   treatment   or <\/p>\n
care,   or   even   in   certain   circumstances   in   which   (on <\/p>\n
principles   which   I   shall   describe)   the   patient   is <\/p>\n
incapacitated   from   stating   whether   or   not   he   gives   his <\/p>\n
consent. But  it is not lawful for a doctor to administer a <\/p>\n
drug to his patient to bring about his death, even though <\/p>\n
that course is prompted by a humanitarian desire to end <\/p>\n
his   suffering,   however   great   that   suffering   may   be:   see <\/p>\n
Reg. v. Cox  (Unreported), Ognall J., Winchester Crown <\/p>\n
Court,   18   September   1992.  So   to   act   is   to   cross   the <\/p>\n
Rubicon which runs between on the one hand the care of <\/p>\n
the   living   patient   and   on   the   other   hand   euthanasia   – <\/p>\n
actively causing his death to avoid or to end his suffering. <\/p>\n
Euthanasia is not lawful at common  law. It is of course <\/p>\n
well known that there are many responsible members of <\/p>\n
our society who believe that euthanasia should be made <\/p>\n
lawful; but  that result could, I believe, only be  achieved <\/p>\n
by legislation which expresses the democratic will that so <\/p>\n
                                                                                   69<\/span><\/p>\n
fundamental   a   change   should   be   made   in   our   law,   and <\/p>\n
can, if enacted, ensure that such legalised killing can only <\/p>\n
be   carried   out   subject   to   appropriate   supervision   and <\/p>\n
control. It is true that the drawing of this distinction may <\/p>\n
lead   to   a   charge   of   hypocrisy;   because   it   can   be   asked <\/p>\n
why, if the doctor, by discontinuing treatment, is entitled <\/p>\n
in   consequence   to   let   his   patient   die,   it   should   not   be <\/p>\n
lawful   to   put   him  out   of   his   misery   straight   away,   in   a <\/p>\n
more   humane   manner,   by   a   lethal   injection,   rather   than <\/p>\n
let him linger on in pain until he dies. But the law does <\/p>\n
not   feel   able   to   authorize   euthanasia,   even   in <\/p>\n
circumstances   such   as   these;   for   once   euthanasia   is <\/p>\n
recognized as lawful in these circumstances, it is difficult <\/p>\n
to see any logical basis for excluding it in others.<\/p>\n
At the heart of this distinction lies a theoretical question. <\/p>\n
Why   is   it  that   the  doctor   who   gives   his   patient   a  lethal <\/p>\n
injection   which   kills   him   commits   an   unlawful   act   and <\/p>\n
indeed   is   guilty   of   murder,   whereas   a   doctor   who,   by <\/p>\n
discontinuing life support, allows his patient to die, may <\/p>\n
not act unlawfully – and will not do so, if he commits no <\/p>\n
breach   of   duty   to   his   patient?   Professor   Glanville <\/p>\n
Williams   has   suggested   (see   his   Textbook   of   Criminal <\/p>\n
Law,   2nd   ed.,   p.   282)   that   the   reason   is   that  what   the <\/p>\n
doctor does when he switches off a life support machine <\/p>\n
‘is   in   substance   not   an   act   but   an   omission   to   struggle, <\/p>\n
and   that   ‘the   omission   is   not   a   breach   of   duty   by   the <\/p>\n
doctor because he is not obliged to continue in a hopeless <\/p>\n
case’.\n<\/p>\n
\nI   agree   that   the   doctor’s   conduct   in   discontinuing   life <\/p>\n
support can properly be categorized as an omission. It is <\/p>\n
true  that it may be difficult  to describe what  the doctor <\/p>\n
actually does as an omission, for example where he takes <\/p>\n
some positive step to bring the life support to an end. But <\/p>\n
discontinuation of life support is, for present purposes, no <\/p>\n
different from not initiating life support in the first place. <\/p>\n
In each case, the doctor is simply allowing his patient to <\/p>\n
die   in   the   sense   that   he   is   desisting   from   taking   a   step <\/p>\n
which might, in certain circumstances, prevent his patient <\/p>\n
                                                                               70<\/span><\/p>\n
from dying  as a result of his pre-existing condition; and <\/p>\n
as a matter of general principle an omission such as this <\/p>\n
will not be unlawful unless it constitutes a breach of duty <\/p>\n
to the patient. I also agree that the doctor’s conduct is to <\/p>\n
be differentiated from that of, for example, an interloper <\/p>\n
who   maliciously   switches   off   a   life   support   machine <\/p>\n
because, although the interloper may perform exactly the <\/p>\n
same act as the doctor who discontinues life support, his <\/p>\n
doing so constitutes interference with the life-prolonging <\/p>\n
treatment   then   being   administered   by   the   doctor. <\/p>\n
Accordingly,   whereas   the   doctor,   in   discontinuing   life <\/p>\n
support, is simply allowing his patient to die of his pre-<\/p>\n
existing   condition,   the   interloper   is   actively   intervening <\/p>\n
to stop the doctor from prolonging the patient’s life, and <\/p>\n
such   conduct   cannot   possibly   be   categorised   as   an <\/p>\n
omission.\n<\/p>\n
\nThe   distinction   appears,   therefore,   to   be   useful   in   the <\/p>\n
present context in that it can be invoked to explain how <\/p>\n
discontinuance of life support can be differentiated from <\/p>\n
ending a patient’s life by a lethal injection. But in the end <\/p>\n
the   reason   for   that   difference   is   that,   whereas   the   law <\/p>\n
considers   that   discontinuance   of   life   support   may   be <\/p>\n
consistent with the doctor’s duty to care for his patient, it <\/p>\n
does not, for reasons of policy, consider that it forms any <\/p>\n
part of his duty to give his patient a lethal injection to put <\/p>\n
him out of his agony.\n<\/p>\n
\nI return to the patient who, because for example he is of <\/p>\n
unsound   mind   or   has   been   rendered   unconscious   by <\/p>\n
accident or by illness, is incapable of stating whether or <\/p>\n
not   he   consents   to   treatment   or   care.   In   such <\/p>\n
circumstances,   it   is   now   established   that   a   doctor   may <\/p>\n
lawfully treat such a patient if he acts in his best interests, <\/p>\n
and indeed that, if the patient is already in his care, he is <\/p>\n
under a duty so to treat him: see In re F [1990] 2 AC 1, in <\/p>\n
which   the   legal   principles   governing   treatment   in   such <\/p>\n
circumstances  were stated  by this House. For my part  I <\/p>\n
can   see   no   reason   why,   as   a   matter   of   principle,   a <\/p>\n
decision   by   a   doctor   whether   or   not   to   initiate,   or   to <\/p>\n
                                                                                71<\/span><\/p>\n
continue   to   provide,   treatment   or   care   which   could   or <\/p>\n
might have the effect of prolonging such a patient’s life, <\/p>\n
should   not   be   governed   by   the   same   fundamental <\/p>\n
principle.   Of   course,   in   the   great   majority   of   cases,   the <\/p>\n
best   interests   of   the   patient   are   likely   to   require   that <\/p>\n
treatment of this kind, if available, should be given to a <\/p>\n
patient. But this may not always be so. To take a simple <\/p>\n
example  given  by   Thomas  J.  in  Re   J.H.L.  (Unreported) <\/p>\n
(High Court of New Zealand) 13 August 1992, at p. 35), <\/p>\n
to whose judgment  in that case  I wish  to pay  tribute,  it <\/p>\n
cannot   be   right   that  a   doctor,   who   has   under   his   care  a <\/p>\n
patient   suffering   painfully   from   terminal   cancer,   should <\/p>\n
be   under   an   absolute   obligation   to   perform   upon   him <\/p>\n
major   surgery   to   abate   another   condition   which,   if <\/p>\n
unabated,   would   or   might   shorten   his   life   still   further. <\/p>\n
The doctor who is caring for such a patient cannot, in my <\/p>\n
opinion,   be   under   an   absolute   obligation   to   prolong   his <\/p>\n
life   by   any   means   available   to   him,   regardless   of   the <\/p>\n
quality  of  the  patient’s   life.  Common   humanity  requires <\/p>\n
otherwise,   as   do   medical   ethics   and   good   medical <\/p>\n
practice accepted in this country and overseas. As I see it, <\/p>\n
the doctor’s decision whether or not to take any such step <\/p>\n
must  (subject to his patient’s  ability to give or withhold <\/p>\n
his consent) be made in the best interests of the patient. It <\/p>\n
is this principle too which, in my opinion, underlies the <\/p>\n
established   rule   that   a   doctor   may,   when   caring   for   a <\/p>\n
patient   who   is,   for   example,   dying   of   cancer,   lawfully <\/p>\n
administer   painkilling   drugs   despite   the   fact   that   he <\/p>\n
knows that an incidental effect of that application will be <\/p>\n
to   abbreviate   the   patient’s   life.   Such   a   decision   may <\/p>\n
properly be made as part of the care of the living patient, <\/p>\n
in his best interests; and, on this basis, the treatment will <\/p>\n
be lawful. Moreover, where the doctor’s treatment of his <\/p>\n
patient  is   lawful,  the   patient’s  death   will  be   regarded  in <\/p>\n
law   as   exclusively   caused   by   the   injury   or   disease   to <\/p>\n
which his condition is attributable.\n<\/p>\n
\nIt   is   of   course   the   development   of   modern   medical <\/p>\n
technology,   and   in   particular   the   development   of   life <\/p>\n
support   systems,   which   has   rendered   cases   such   as   the <\/p>\n
                                                                                  72<\/span><\/p>\n
present so much more relevant than in the past. Even so, <\/p>\n
where (for example) a patient is brought into hospital in <\/p>\n
such a condition that, without the benefit of a life support <\/p>\n
system, he will not continue to live, the decision has to be <\/p>\n
made whether or not to give him that benefit, if available. <\/p>\n
That   decision   can  only   be  made   in   the  best   interests   of <\/p>\n
the   patient.   No   doubt,   his   best   interests   will   ordinarily <\/p>\n
require that he should be placed on a life support system <\/p>\n
as   soon   as   necessary,   if   only   to   make   an   accurate <\/p>\n
assessment   of   his   condition   and   a   prognosis   for   the <\/p>\n
future. But if he neither recovers sufficiently to be taken <\/p>\n
off it nor dies, the question will ultimately arise  whether <\/p>\n
he   should   be   kept   on   it   indefinitely.   As   I   see   it,   that <\/p>\n
question   (assuming   the   continued   availability   of   the <\/p>\n
system)   can   only   be   answered   by   reference   to   the   best <\/p>\n
interests   of   the   patient   himself,   having   regard   to <\/p>\n
established   medical   practice.   Indeed,   if   the   justification <\/p>\n
for   treating   a   patient   who   lacks   the   capacity   to   consent <\/p>\n
lies in the fact that the treatment is provided in his best <\/p>\n
interests,   it   must   follow   that   the  treatment  may,   and <\/p>\n
indeed ultimately should, be discontinued where it is no <\/p>\n
longer   in   his   best   interests   to   provide   it.   The   question <\/p>\n
which lies at the heart of the present case is, as I see it, <\/p>\n
whether on that principle the doctors responsible for the <\/p>\n
treatment   and   care   of   Anthony     Bland     can   justifiably <\/p>\n
discontinue  the process of artificial  feeding  upon which <\/p>\n
the prolongation of his life depends.\n<\/p>\n
\nIt is crucial for the understanding of this question that the <\/p>\n
question   itself   should   be   correctly   formulated.   The <\/p>\n
question  is not whether  the doctor  should take a  course <\/p>\n
which will  kill  his patient,  or even take  a course which <\/p>\n
has  the  effect  of accelerating  his  death.  The  question  is <\/p>\n
whether   the   doctor   should   or   should   not   continue   to <\/p>\n
provide his patient with medical treatment or care which, <\/p>\n
if continued, will prolong his patient’s life. The question <\/p>\n
is   sometimes   put   in   striking   or   emotional   terms,   which <\/p>\n
can   be   misleading.   For   example,   in   the   case   of   a   life <\/p>\n
support system, it is sometimes asked: Should a doctor be <\/p>\n
entitled to switch it off, or to pull the plug? And then it is <\/p>\n
                                                                                                            73<\/span><\/p>\n
                  asked: Can it be in the best interests of the patient that a <\/p>\n
                  doctor   should   be   able   to   switch   the   life   support   system <\/p>\n
                  off, when this will inevitably result in the patient’s death? <\/p>\n
                  Such   an   approach   has   rightly   been   criticised   as <\/p>\n
                  misleading, for example by Professor Ian Kennedy (in his <\/p>\n
                  paper   in   Treat   Me   Right,   Essays   in   Medical   Law   and <\/p>\n
                  Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21- <\/p>\n
                  22. This is because the question is not whether it is in the <\/p>\n
                  best   interests   of   the   patient   that   he   should   die.   The <\/p>\n
                  question is whether it is in the best interests of the patient <\/p>\n
                  that   his   life   should   be   prolonged   by   the   continuance   of <\/p>\n
                  this form of medical treatment or care.\n<\/p>\n
\n                  The   correct   formulation   of   the   question   is   of   particular <\/p>\n
                  importance   in   a   case   such   as   the   present,   where   the <\/p>\n
                  patient is totally unconscious and where there is no hope <\/p>\n
                  whatsoever   of   any   amelioration   of   his   condition.   In <\/p>\n
                  circumstances   such   as   these,   it   may   be   difficult   to   say <\/p>\n
                  that it is in his best interests that the treatment should be <\/p>\n
                  ended. But if the question is asked,  as in my opinion it <\/p>\n
                  should be, whether it is in his best interests that treatment <\/p>\n
                  which   has   the   effect   of   artificially   prolonging   his   life <\/p>\n
                  should   be   continued,   that   question   can   sensibly   be <\/p>\n
                  answered to the effect that it is not in his best interests to <\/p>\n
                  do so.\n<\/p>\n
                                                                                     (emphasis supplied)<\/p>\n
70.      In   a   Discussion   Paper   on   Treatment   of   Patients   in   Persistent <\/p>\n
Vegetative State issued in September 1992 by the Medical Ethics Committee <\/p>\n
of the British Medical Association certain safeguards were mentioned which <\/p>\n
should be observed before constituting life support for such patients:-<\/p>\n
                  “(1) Every effort should be made at rehabilitation for at <\/p>\n
                  least   six   months   after   the   injury;   (2)   The   diagnosis   of <\/p>\n
                  irreversible   PVS   should   not   be   considered   confirmed <\/p>\n
                                                                                                 74<\/span><\/p>\n
                 until   at   least   twelve   months   after   the   injury,   with   the <\/p>\n
                 effect   that   any   decision   to   withhold   life   prolonging <\/p>\n
                 treatment   will   be   delayed   for   that   period;   (3)   The <\/p>\n
                 diagnosis   should   be   agreed   by   two   other   independent <\/p>\n
                 doctors;   and   (4)   Generally,   the   wishes   of   the   patient’s <\/p>\n
                 immediate family will be given great weight.”<\/p>\n<\/blockquote>\n
71.     Lord   Goff   observed   that   discontinuance   of   artificial   feeding   in  such <\/p>\n
cases is not equivalent to cutting a mountaineer’s  rope, or severing the air <\/p>\n
pipe of a deep sea diver.  The true question is not whether the doctor should <\/p>\n
take a course in which he will actively kill his patient, but rather whether he <\/p>\n
should continue to provide his patient with medical treatment or care which, <\/p>\n
if continued, will prolong his life.\n<\/p>\n<\/p>\n
72.     Lord   Browne-Wilkinson   was   of   the   view   that   removing   the <\/p>\n
nasogastric   tube   in   the   case   of   Anthony   Bland   cannot   be   regarded   as   a <\/p>\n
positive   act   causing   the   death.     The   tube   itself,   without   the   food   being <\/p>\n
supplied through it, does nothing.  Its non removal itself does not cause the <\/p>\n
death   since   by   itself,   it   does   not   sustain   life.     Hence   removal   of   the   tube <\/p>\n
would not constitute the actus reus   of murder, since such an act would not <\/p>\n
cause the death.\n<\/p>\n<\/p>\n
73.     Lord Mustill observed:-\n<\/p>\n<\/p>\n
                         “Threaded   through   the   technical   arguments <\/p>\n
                 addressed to the House were the strands of a much wider <\/p>\n
                                                                                                 75<\/span><\/p>\n
                 position, that it is in the best interests of the community <\/p>\n
                 at large that  Anthony Bland’s life should now end.   The <\/p>\n
                 doctors  have done all they can.   Nothing will be gained <\/p>\n
                 by going on  and much will be lost.   The  distress of the <\/p>\n
                 family will get steadily worse.  The strain on the devotion <\/p>\n
                 of   a   medical   staff   charged   with   the   care  of   a   patient <\/p>\n
                 whose   condition   will   never   improve,   who   may   live   for <\/p>\n
                 years and who does not even recognize that he is being <\/p>\n
                 cared for, will continue to mount.  The large resources of <\/p>\n
                 skill,  labour  and  money   now being  devoted  to Anthony <\/p>\n
                 Bland  might   in   the   opinion   of   many   be   more   fruitfully <\/p>\n
                 employed   in   improving   the   condition   of   other   patients, <\/p>\n
                 who   if   treated   may   have   useful,   healthy   and   enjoyable <\/p>\n
                 lives for years to come.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
74.     Thus all the Judges of the House of Lords in the Airedale case (supra) <\/p>\n
were agreed that Anthony Bland should be allowed to die.<\/p>\n
75.     Airedale (1993) decided by the House of Lords has been followed in a <\/p>\n
number of cases in U.K., and the law is now fairly well settled that in the <\/p>\n
case   of   incompetent   patients,   if   the   doctors   act   on   the   basis   of   informed <\/p>\n
medical opinion, and withdraw the artificial life support system if it is in the <\/p>\n
patient’s best interest, the said act cannot be regarded as a crime.<\/p>\n
76.     The   question,   however,   remains   as   to   who   is   to   decide   what   is   the <\/p>\n
patient’s   best   interest   where   he   is   in   a   persistent   vegetative   state   (PVS)? <\/p>\n
Most decisions have held that the decision of the parents, spouse, or other <\/p>\n
close   relative,   should   carry   weight   if   it   is   an   informed   one,  but   it   is   not <\/p>\n
                                                                                              76<\/span><\/p>\n
decisive  (several of these decisions have been referred to in Chapter IV of <\/p>\n
the 196th  Report of the Law Commission of India on Medical Treatment to <\/p>\n
Terminally ill Patients).\n<\/p>\n<\/p>\n
77.     It is ultimately for the Court to decide, as parens patriae, as to what is <\/p>\n
is in the best interest of the patient, though the wishes of close relatives and <\/p>\n
next friend, and opinion of medical practitioners should be given due weight <\/p>\n
in coming to its decision.  As stated by Balcombe, J. in  In Re J  ( A Minor <\/p>\n
Wardship   :   Medical   Treatment)   1990(3)   All   E.R.   930,   the   Court   as <\/p>\n
representative   of   the   Sovereign   as   parens   patriae   will   adopt   the   same <\/p>\n
standard which a reasonable and responsible parent would do.<\/p>\n
78.     The   parens   patriae   (father   of   the   country)   jurisdiction   was   the <\/p>\n
jurisdiction of the Crown, which, as stated in Airedale, could be traced to the <\/p>\n
13th Century.  This principle laid down that as the Sovereign it was the duty <\/p>\n
of the King to protect the person and property of those who were unable to <\/p>\n
protect   themselves.     The   Court,   as   a   wing   of   the   State,   has   inherited   the <\/p>\n
parens patriae jurisdiction which formerly belonged to the King.        <\/p>\n
 U.S. decisions<\/p>\n
79.     The   two   most   significant   cases   of   the   U.S.   Supreme   Court   that <\/p>\n
addressed   the   issue   whether   there   was   a   federal   constitutional   right   to <\/p>\n
                                                                                          77<\/span><\/p>\n
assisted   suicide   arose   from   challenges   to   State   laws   banning   physician <\/p>\n
assisted suicide brought by terminally ill patients and their physicians. These <\/p>\n
were  Washington    vs.    Glucksberg  521  U.S.  702  (1997)  and  Vacco   vs. <\/p>\n
Quill 521 U.S. 793 (1997).\n<\/p>\n<\/p>\n
80.    In  Glucksberg’s  case, the U.S. Supreme Court held that the asserted <\/p>\n
right to assistance in committing suicide is not a fundamental liberty interest <\/p>\n
protected   by   the   Due   Process   Clause   of   the   Fourteenth   Amendment.     The <\/p>\n
Court observed :\n<\/p>\n<\/p>\n
               “The   decision   to   commit   suicide   with   the   assistance   of <\/p>\n
               another   may   be   just   as   personal   and   profound   as   the <\/p>\n
               decision to refuse unwanted medical treatment, but it has <\/p>\n
               never   enjoyed   similar   legal   protection.     Indeed   the   two <\/p>\n
               acts   are   widely   and   reasonably   regarded   as   quite <\/p>\n
               distinct.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
81.    The   Court   went   on   to   conclude   that   the   Washington   statute   being <\/p>\n
challenged   was   rationally   related   to   five   legitimate   government   interest   : <\/p>\n
protection of life, prevention of suicide, protection of ethical integrity of the <\/p>\n
medical profession, protection of vulnerable groups, and protection against <\/p>\n
the “slippery slope” towards euthanasia.  The Court then noted that perhaps <\/p>\n
the individual States were more suited to resolving or at least addressing the <\/p>\n
                                                                                              78<\/span><\/p>\n
myriad   concerns   raised   by   both   proponents   and   opponents   of   physician <\/p>\n
assisted suicide.  The Court observed :\n<\/p>\n<\/p>\n
                        “Throughout the Nation, Americans are engaged in <\/p>\n
                an   earnest   and   profound   debate   about   the   morality, <\/p>\n
                legality   and   practicality   of   physician   assisted   suicide. <\/p>\n
                Our holding permits this debate to continue, as it should <\/p>\n
                in a democratic society.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
82.     In Vacco’s case (supra) the U.S. Supreme Court again recognized the <\/p>\n
distinction between refusing life saving medical treatment and giving lethal <\/p>\n
medication.     The   Court   disagreed   with   the   view   of   the   Second   Circuit <\/p>\n
Federal Court that ending or refusing lifesaving medical treatment is nothing <\/p>\n
more   nor   less   than   assisted   suicide.     The   Court   held   that   “the   distinction <\/p>\n
between   letting   a   patient   die   and   making   that   patient   die  is   important, <\/p>\n
logical, rational, and well established”.  The Court held that the State of New <\/p>\n
York could validly ban the latter.\n<\/p>\n<\/p>\n
83.         In  Cruzan  v.  Director,   MDH,  497   U.S.  261(1990)   decided   by   the <\/p>\n
U.S. Supreme Court the majority opinion was delivered by the Chief Justice <\/p>\n
Rehnquist.\n<\/p>\n<\/p>\n
84.     In   that   case,   the   petitioner   Nancy   Cruzan   sustained   injuries   in   an <\/p>\n
automobile accident and lay  in a Missouri State  hospital in what has been <\/p>\n
referred   to   as   a   persistent   vegetative   state   (PVS),   a   condition   in   which   a <\/p>\n
person   exhibits   motor   reflexes   but   evinces   no   indication   of   significant <\/p>\n
cognitive function.   The state of Missouri was bearing the cost of her care. <\/p>\n
                                                                                           79<\/span><\/p>\n
Her   parents   and   co-guardians   applied   to   the   Court   for   permission   to <\/p>\n
withdraw   her   artificial   feeding   and   hydration   equipment   and   allow   her   to <\/p>\n
die.     While the trial Court granted the prayer, the State Supreme Court of <\/p>\n
Missouri reversed, holding that under a statute in the State of Missouri it was <\/p>\n
necessary   to  prove  by  clear  and  convincing   evidence  that  the  incompetent <\/p>\n
person had wanted, while competent, withdrawal of life support treatment in <\/p>\n
such   an  eventuality.    The   only   evidence  led   on  that   point  was  the  alleged <\/p>\n
statement of Nancy Cruzan to a housemate about a year before the accident <\/p>\n
that she did not want life as a `vegetable’.  The State Supreme Court was of <\/p>\n
the   view   that   this   did   not   amount   to   saying   that   medical   treatment   or <\/p>\n
nutrition or hydration should be withdrawn.\n<\/p>\n<\/p>\n
85.     Chief Justice Rehnquist delivering the opinion of the Court (in which <\/p>\n
Justices White, O’Connor, Scalia, and Kennedy, joined) in his judgment first <\/p>\n
noted  the facts:-\n<\/p>\n<\/p>\n
                 “On  the  night of January 11, 1983, Nancy  Cruzan lost <\/p>\n
               control   of   her   car   as   she   traveled   down   Elm   Road   in <\/p>\n
               Jasper   County,   Missouri.   The   vehicle   overturned,   and <\/p>\n
               Cruzan   was   discovered   lying   face   down   in   a   ditch <\/p>\n
               without   detectable   respiratory   or   cardiac   function. <\/p>\n
               Paramedics   were   able   to   restore   her   breathing   and <\/p>\n
               heartbeat at the accident site, and she was transported to a <\/p>\n
               hospital   in   an   unconscious   state.   An   attending <\/p>\n
               neurosurgeon diagnosed her as having sustained probable <\/p>\n
                                                                                            80<\/span><\/p>\n
              cerebral   contusions   compounded   by   significant   anoxia <\/p>\n
              (lack   of   oxygen).   The   Missouri   trial   court   in   this   case <\/p>\n
              found that permanent brain damage generally results after <\/p>\n
              6 minutes in an anoxic state; it was estimated that Cruzan <\/p>\n
              was   deprived   of   oxygen   from   12   to   14   minutes.   She <\/p>\n
              remained in a coma for approximately three weeks, and <\/p>\n
              then progressed to an unconscious state in which she was <\/p>\n
              able   to   orally   ingest   some   nutrition.   In   order   to   ease <\/p>\n
              feeding   and   further   the   recovery,   surgeons   implanted   a <\/p>\n
              gastrostomy   feeding   and   hydration   tube   in   Cruzan   with <\/p>\n
              the   consent   of   her   then   husband.   Subsequent <\/p>\n
              rehabilitative efforts proved unavailing. She now lies in a <\/p>\n
              Missouri state hospital in what is commonly  referred to <\/p>\n
              as a persistent vegetative state: generally, a condition in <\/p>\n
              which   a   person   exhibits   motor   reflexes   but   evinces   no <\/p>\n
              indications of significant cognitive function.  1  The State <\/p>\n
              of Missouri is bearing the cost of her care. [497 U.S. 261, <\/p>\n
              267]   <\/p>\n
              After   it   had   become   apparent   that   Nancy   Cruzan   had <\/p>\n
              virtually no chance of regaining her mental faculties, her <\/p>\n
              parents   asked   hospital   employees   to   terminate   the <\/p>\n
              artificial   nutrition   and   hydration   procedures.   All   agree <\/p>\n
              that   such   a  [497   U.S.  261,   268]     removal   would   cause <\/p>\n
              her   death.   The   employees   refused   to   honor   the   request <\/p>\n
              without   court   approval.   The   parents   then   sought   and <\/p>\n
              received   authorization   from   the   state   trial   court   for <\/p>\n
              termination.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
86.     While the trial Court allowed the petition the State Supreme Court of <\/p>\n
Missouri reversed.  The US Supreme Court by majority affirmed the verdict <\/p>\n
of the State Supreme Court<\/p>\n
87.     Chief Justice Rehnquist noted that in law even touching of one person <\/p>\n
by another without consent and without legal justification was a battery, and <\/p>\n
                                                                                          81<\/span><\/p>\n
hence   illegal.     The   notion   of   bodily   integrity   has   been   embodied   in   the <\/p>\n
requirement   that   informed   consent   is   generally   required   for   medical <\/p>\n
treatment.   As observed by Justice Cardozo, while on the Court of Appeals <\/p>\n
of New York “Every human being of adult years and sound mind has a right <\/p>\n
to   determine   what   shall   be   done   with   his   own   body,   and   a   surgeon   who <\/p>\n
performs an operation without his patient’s consent commits an assault, for <\/p>\n
which   he   is   liable   in   damages.”   vide  Schloendorff    vs.    Society   of   New <\/p>\n
York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914).     Thus the <\/p>\n
informed consent doctrine has become firmly entrenched in American Tort <\/p>\n
Law.   The logical corollary   of the doctrine of informed consent is that the <\/p>\n
patient   generally   possesses   the   right   not   to   consent,   that   is   to   refuse <\/p>\n
treatment.\n<\/p>\n<\/p>\n
88.    The question, however, arises in cases where the patient is unable to <\/p>\n
decide whether the treatment should continue or not e.g. if he is in coma or <\/p>\n
PVS.  Who is to give consent to terminate the treatment in such a case?  The <\/p>\n
learned   Chief  Justice   referred   to   a  large   number   of  decisions   of  Courts   in <\/p>\n
U.S.A. in this connection, often taking diverse approaches.<\/p>\n
89.    In   re   Quinlan  70   N.J.10,   355   A.   2d   647,   Karen   Quinlan   suffered <\/p>\n
severe brain damage as a result of anoxia, and entered into PVS.  Her father <\/p>\n
                                                                                         82<\/span><\/p>\n
sought   judicial   approval   to   disconnect   her   respirator.     The   New   Jersey <\/p>\n
Supreme Court granted the prayer, holding that Karen had a right of privacy <\/p>\n
grounded   in   the   U.S.   Constitution   to   terminate   treatment.     The   Court <\/p>\n
concluded that the way Karen’s right to privacy could be exercised would be <\/p>\n
to allow her guardian and family to decide whether she would exercise it in <\/p>\n
the circumstances.\n<\/p>\n<\/p>\n
90.    In re Conroy  98 NJ 321, 486 A.2d 1209 (1985), however, the New <\/p>\n
Jersey Supreme Court, in a case of an 84 year old incompetent nursing home <\/p>\n
resident   who   had   suffered   irreversible   mental   and   physical   ailments, <\/p>\n
contrary to its decision in Quinlan’s case, decided to base its decision on the <\/p>\n
common  law right  to self determination  and informed consent.    This  right <\/p>\n
can   be   exercised   by   a   surrogate   decision   maker   when   there   was   a   clear <\/p>\n
evidence that the incompetent person would have exercised it.  Where such <\/p>\n
evidence was lacking the Court held that an individual’s right could still be <\/p>\n
invoked   in   certain   circumstances   under   objective   `best   interest’   standards. <\/p>\n
Where   no   trustworthy   evidence   existed   that   the   individual   would   have <\/p>\n
wanted   to   terminate   treatment,   and   a   person’s   suffering   would   make   the <\/p>\n
administration   of   life   sustaining   treatment   inhumane,   a   pure   objective <\/p>\n
                                                                                               83<\/span><\/p>\n
standard   could   be   used   to   terminate   the   treatment.       If   none   of   these <\/p>\n
conditions obtained, it was best to err in favour of preserving life.<\/p>\n
91.    What is important to note in Cruzan’s case (supra) is that there was a <\/p>\n
statute of the State of Missouri, unlike in  Airedale’s  case (where there was <\/p>\n
none), which required clear and convincing evidence that while the patient <\/p>\n
was   competent   she   had   desired   that   if   she   becomes   incompetent   and   in   a <\/p>\n
PVS her life support should be withdrawn.\n<\/p>\n<\/p>\n
92.    In Cruzan’s case (supra) the learned Chief Justice observed :<\/p>\n
                 “Not   all   incompetent   patients   will   have   loved   ones <\/p>\n
               available   to   serve   as   surrogate   decision   makers.     And <\/p>\n
               even where family members are present, there will be, of <\/p>\n
               course,   some   unfortunate   situations   in   which   family <\/p>\n
               members   will   not   act   to   protect   a   patient.     A   State   is <\/p>\n
               entitled   to   guard   against   potential   abuses   in   such <\/p>\n
               situations.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
93.    The learned Chief Justice further observed :<\/p>\n
                 “An   erroneous   decision   not   to   terminate   results   in <\/p>\n
               maintenance   of   the   status   quo;   the   possibility   of <\/p>\n
               subsequent   developments   such   as   advancements   in <\/p>\n
               medical science, the discovery of new evidence regarding <\/p>\n
               the   patient’s   intent,   changes   in   the   law,   or   simply   the <\/p>\n
               unexpected death of the patient despite the administration <\/p>\n
               of   life-sustaining   treatment,   at   least   create   the   potential <\/p>\n
               that a wrong decision will eventually be corrected or its <\/p>\n
               impact   mitigated.     An   erroneous   decision   to   withdraw <\/p>\n
                                                                                              84<\/span><\/p>\n
                life-sustaining   treatment,   however,   is   not   susceptible   of <\/p>\n
                correction.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
94.     No   doubt   Mr.   Justice   Brennan   (with   whom   Justices   Marshall   and <\/p>\n
Blackmun   joined)   wrote   a   powerful   dissenting   opinion,   but   it   is   not <\/p>\n
necessary   for   us   to   go   into   the   question   whether   the   view   of   the   learned <\/p>\n
Chief Justice or that of Justice Brennan, is correct.<\/p>\n
95.     It may be clarified that foreign decisions have only persuasive value <\/p>\n
in our country, and are not binding authorities on our Courts.  Hence we can <\/p>\n
even prefer to follow the minority view, rather than the majority view, of a <\/p>\n
foreign decision, or follow an overruled foreign decision.<\/p>\n
96.     Cruzan’s case (supra) can be distinguished on the simple ground that <\/p>\n
there was a  statute  in the State of Missouri, whereas there was none in the <\/p>\n
Airedale’s case nor in the present case before us.  We are, therefore, of the <\/p>\n
opinion that the Airedale’s case (supra) is more apposite as a precedent for <\/p>\n
us.  No doubt foreign decisions are not binding on us, but they certainly have <\/p>\n
persuasive value.\n<\/p>\n
\nLAW IN INDIA<\/p>\n
97.     In   India   abetment   of   suicide   (Section   306   Indian   Penal   Code)   and <\/p>\n
attempt   to   suicide   (Section   309   of   Indian   Penal   Code)   are   both   criminal <\/p>\n
                                                                                              85<\/span><\/p>\n
offences.  This is in contrast to many countries such as USA where attempt <\/p>\n
to suicide is not a crime.\n<\/p>\n<\/p>\n
98.     The Constitution Bench of the Indian Supreme Court in  Gian Kaur <\/p>\n
vs.    State   of   Punjab,   1996(2)   SCC   648   held   that   both   euthanasia   and <\/p>\n
assisted suicide are not lawful in India.   That decision overruled the earlier <\/p>\n
two Judge Bench decision of the Supreme Court in P. Rathinam  vs.  Union <\/p>\n
of   India,<\/a>   1994(3)   SCC   394.     The   Court   held   that   the   right   to   life   under <\/p>\n
Article 21 of the Constitution does not include the right to die (vide para 33). <\/p>\n
In Gian Kaur’s case (supra) the Supreme Court approved of the decision of <\/p>\n
the House of Lords in Airedale’s case (supra), and observed that euthanasia <\/p>\n
could be made lawful only by legislation.\n<\/p>\n<\/p>\n
99.     Sections 306 and 309 IPC read as under :\n<\/p>\n<\/p>\n
                “306. Abetment of suicide –              If   any   person   commits <\/p>\n
                suicide,   whoever   abets   the   commission   of  such   suicide, <\/p>\n
                shall be punished with imprisonment of either description <\/p>\n
                for a term which may extend to ten years, and shall also <\/p>\n
                be liable to fine.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                        309.    Attempt to commit suicide –              Whoever <\/p>\n
                attempts to commit suicide and does any act towards the <\/p>\n
                commission   of   such   offence,   shall   be   punished   with <\/p>\n
                simple imprisonment for a term which may extend to one <\/p>\n
                year or with fine, or with both.”\n<\/p><\/blockquote>\n
\n                                                                                           86<\/span><\/p>\n<\/blockquote>\n
100.    We  are  of the opinion that although Section  309 Indian  Penal Code <\/p>\n
(attempt   to   commit   suicide)   has   been   held   to   be   constitutionally   valid   in <\/p>\n
Gian Kaur’s  case (supra), the time has come when it should be deleted by <\/p>\n
Parliament as it has become anachronistic.   A person attempts suicide in a <\/p>\n
depression, and hence he needs help, rather than punishment.  We therefore <\/p>\n
recommend to Parliament to consider the feasibility of deleting Section 309 <\/p>\n
from the Indian Penal Code.\n<\/p>\n<\/p>\n
101.    It   may   be   noted   that   in  Gian   Kaur’s  case   (supra)   although   the <\/p>\n
Supreme Court has quoted with approval the view of the House of Lords in <\/p>\n
Airedale’s  case   (supra),   it   has   not   clarified   who   can   decide   whether   life <\/p>\n
support should be discontinued in the case of an incompetent person e.g. a <\/p>\n
person in coma or PVS.  This vexed question has been arising often in India <\/p>\n
because there are a large number of cases where persons go into coma (due <\/p>\n
to an accident or some other reason) or for some other reason are unable to <\/p>\n
give consent, and then the question arises as to who should give consent for <\/p>\n
withdrawal of life support.\n<\/p>\n<\/p>\n
102.    This   is   an   extremely   important   question   in   India   because   of   the <\/p>\n
unfortunate   low   level   of   ethical   standards   to   which   our   society   has <\/p>\n
descended,   its   raw   and   widespread   commercialization,   and   the   rampant <\/p>\n
                                                                                                  87<\/span><\/p>\n
corruption, and hence, the Court has to be very cautious that unscrupulous <\/p>\n
persons   who   wish   to   inherit   the   property   of   someone   may   not   get   him <\/p>\n
eliminated by some crooked method.\n<\/p>\n<\/p>\n
103.    Also,   since   medical   science   is   advancing   fast,   doctors   must   not <\/p>\n
declare   a   patient   to   be   a   hopeless   case   unless   there   appears   to   be   no <\/p>\n
reasonable   possibility   of   any   improvement   by   some   newly   discovered <\/p>\n
medical   method   in   the   near   future.     In   this   connection   we   may   refer   to   a <\/p>\n
recent news item which we have come across on the internet of an Arkansas <\/p>\n
man Terry Wallis, who was 19 years of age and newly married with a baby <\/p>\n
daughter   when   in   1984   his   truck   plunged   through   a   guard   rail,   falling   25 <\/p>\n
feet.     He   went   into   coma   in   the   crash   in   1984,   but   after   24   years   he   has <\/p>\n
regained consciousness.   This was perhaps because his brain spontaneously <\/p>\n
rewired   itself   by   growing   tiny   new   nerve   connections   to   replace   the   ones <\/p>\n
sheared apart in the car crash.  Probably the nerve fibers from Terry Wallis’ <\/p>\n
cells   were   severed   but   the   cells   themselves   remained   intact,   unlike   Terri <\/p>\n
Schiavo, whose brain cells had died (see Terri Schiavo’s case on Google).  <\/p>\n
104.    However, we make it clear that it is experts like medical practitioners <\/p>\n
who can decide whether there is any reasonable possibility of a new medical <\/p>\n
discovery which could enable such a patient to revive in the near future.<\/p>\n
                                                                                                   88<\/span><\/p>\n
WHEN CAN A PERSON IS SAID TO BE DEAD <\/p>\n
105.    It is alleged in the writ petition filed by Ms. Pinky Virani  (claiming to <\/p>\n
be   the   next   friend   of     Aruna   Shanbaug)   that   in   fact   Aruna   Shanbaug   is <\/p>\n
already dead and hence by not feeding her body any more we shall not be <\/p>\n
killing her.  The question hence arises as to when a person can be said to be <\/p>\n
dead ?\n<\/p>\n<\/p>\n
106.    A person’s most important organ is his\/her brain.   This organ cannot <\/p>\n
be replaced.  Other body parts can be replaced e.g. if a person’s hand or leg <\/p>\n
is   amputed,   he   can   get   an   artificial   limb.     Similarly,   we   can   transplant   a <\/p>\n
kidney,   a   heart   or   a   liver   when  the   original   one   has   failed.     However,  we <\/p>\n
cannot transplant a brain.  If someone  else’s brain is transplanted into one’s <\/p>\n
body,   then   in   fact,   it   will   be   that   other   person   living   in   one’s   body.     The <\/p>\n
entire   mind,   including   one’s   personality,   cognition,   memory,   capacity   of <\/p>\n
receiving signals from the five senses and capacity of giving commands to <\/p>\n
the other parts of the body, etc. are the functions of the brain.  Hence one is <\/p>\n
one’s brain.  It follows that one is dead when one’s brain is dead.<\/p>\n
107.    As is well-known, the brain cells normally do not multiply after the <\/p>\n
early years of childhood (except in the region called hippocampus), unlike <\/p>\n
other cells like skin cells, which are regularly dying and being replaced by <\/p>\n
                                                                                              89<\/span><\/p>\n
new cells produced by multiplying of the old cells.  This is probably because <\/p>\n
brain cells are too highly specialized to multiply.   Hence if the brain cells <\/p>\n
die, they usually cannot be replaced (though sometimes one part of the brain <\/p>\n
can   take   over   the   function   of   another   part   in   certain   situations   where   the <\/p>\n
other part has been irreversibly damaged).\n<\/p>\n<\/p>\n
108.    Brain cells require regular supply of oxygen which comes through the <\/p>\n
red cells in the blood.  If oxygen supply is cut off for more than six minutes, <\/p>\n
the brain cells die and this condition is known as anoxia.  Hence, if the brain <\/p>\n
is dead a person is said to be dead.\n<\/p>\n
BRAIN DEATH<\/p>\n
109.    The   term   `brain   death’   has   developed   various   meanings.   While <\/p>\n
initially,   death   could   be   defined   as   a   cessation   of   breathing,   or,   more <\/p>\n
scientifically, a cessation of heart-beat, recent medical advances have made <\/p>\n
such   definitions   obsolete.   In   order   to   understand   the   nature   and   scope   of <\/p>\n
brain   death,   it   is   worthwhile   to   look   at   how   death   was   understood. <\/p>\n
Historically,   as   the   oft-quoted   definition   in   Black’s   Law   Dictionary <\/p>\n
suggests, death was:\n<\/p>\n
\n“The cessation of life; the ceasing to exist; defined by physicians as a total  <\/p>\n
stoppage of the circulation of the blood, and a cessation of the animal and  <\/p>\n
                                                                                                 90<\/span><\/p>\n
vital   functions   consequent   thereon,   such   as   respiration,   pulsation,   etc.”.1 <\/p>\n
This definition saw its echo in numerous other texts and legal case law. This <\/p>\n
includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d <\/p>\n
120,   133   (Mo.   1961)   (“Black’s   Law   Dictionary,   4th   Ed.,   defines   death   as <\/p>\n
`the cessation of life; the ceasing to exist ….”‘); and  Sanger v. Butler, 101 <\/p>\n
S.W.   459,   462   (Tex.   Civ.   App.   1907)  (“The   Encyclopaedic   Dictionary, <\/p>\n
among others, gives the following definitions of [death]: `The state of being <\/p>\n
dead;   the   act   or   state   of   dying;   the   state   or   condition   of   the   dead.’   The <\/p>\n
Century Dictionary defines death as `cessation of life; that state of a being, <\/p>\n
animal or vegetable, in which there is a total and permanent cessation of all <\/p>\n
the vital functions.”‘).2<\/p>\n
110.     This   understanding   of   death   emerged   from   a   cardiopulmonary <\/p>\n
perspective.   In   such   cases,   the   brain   was   usually   irrelevant   —   being <\/p>\n
understood that the cessation of circulation would automatically lead to the <\/p>\n
death of brain cells, which require a great deal of blood to survive. <\/p>\n
111.     The   invention   of   the   ventilator   and   the   defibrillator   in   the   1920s <\/p>\n
altered   this   understanding,   it   being   now   possible   that   the   cessation   of <\/p>\n
1 Black’s Law Dictionary 488 (4th ed., rev. 1968).<\/p>\n
2 Goldsmith, Jason, Wanted! Dead and\/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions  <\/p>\n
of Death, 61 U. Miami L. Rev. 871. (2007).\n<\/p>\n
\n                                                                                                 91<\/span><\/p>\n
respiration and circulation, though critical, would no longer be irreversible3. <\/p>\n
Hence, a present-day understanding of death as the irreversible end of life <\/p>\n
must imply total brain failure, such that neither breathing, nor circulation is <\/p>\n
possible  any more.  The question of the length of time that may determine <\/p>\n
such   death   is   significant,   especially   considering   a   significant   increase   in <\/p>\n
organ donations across jurisdictions over the last few years. <\/p>\n
112.    Brain death, may thus, be defined as “the irreversible cessation of all <\/p>\n
functions of the entire brain, including the brain stem”.4   It is important to <\/p>\n
understand that this definition goes beyond acknowledging consciousness — <\/p>\n
a   person   who   is   incapable   of   ever   regaining   consciousness   will   not   be <\/p>\n
considered to be brain dead as long as parts of the brain e.g. brain stem that <\/p>\n
regulate involuntary activity (such as response to light, respiration, heartbeat <\/p>\n
etc.)  still continue to function.    Likewise,  if  consciousness,  albeit  severely <\/p>\n
limited, is present, then a person will be considered to be alive even if he has <\/p>\n
suffered brain stem death, wherein breathing and heartbeat can no longer be <\/p>\n
regulated   and   must   be   mechanically   determined.   Hence,   the   international <\/p>\n
standard   for   brain   death   is   usually   considered   to   include   “whole-brain <\/p>\n
death”, i.e., a situation where the higher brain (i.e. the part of the brain that <\/p>\n
3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A  <\/p>\n
Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).<\/p>\n
4 Section 1, Universal Determination of Death Act, (The United States Legislation)<\/p>\n
                                                                                                                    92<\/span><\/p>\n
regulates consciousness and thought), the cerebellum or mid-brain, and the <\/p>\n
brain-stem have all ceased to demonstrate any electrical activity whatsoever <\/p>\n
for a significant amount of time. To say, in most cases, that only the death of <\/p>\n
the   higher   brain   would   be   a   criteria   for   `brain   death’   may   have   certain <\/p>\n
serious   consequences  —  for   example,   a   foetus,   technically   under   this <\/p>\n
definition, would not be considered to be alive at all. Similarly, as per this, <\/p>\n
different   definitions   of   death   would   apply   to   human   and   non-human <\/p>\n
organisms.\n<\/p>\n<\/p>\n
113.      Brain death, thus, is different from a persistent vegetative state, where <\/p>\n
the   brain   stem   continues   to   work,   and   so   some   degree   of   reactions   may <\/p>\n
occur, though the possibility of regaining consciousness is relatively remote. <\/p>\n
Even   when   a   person   is   incapable   of   any   response,   but   is   able   to   sustain <\/p>\n
respiration   and   circulation,   he   cannot   be   said   to   be   dead.   The   mere <\/p>\n
mechanical act of breathing, thus, would enable him or her to be “alive”. <\/p>\n
114.      The first attempt to define death in this manner came about in 1968, as <\/p>\n
a result of a Harvard Committee constituted for the purpose.5 This definition, <\/p>\n
widely criticized for trying to maximize organ donations, considered death <\/p>\n
to   be   a   situation   wherein   “individuals   who   had   sustained   traumatic   brain  <\/p>\n
5  Ad  Hoc  Comm.  of  the   Harvard  Med.  Sch.  to   Examine   the  Definition   of  Brain  Death,  A  Definition   of  <\/p>\n
Irreversible Coma, 205 JAMA 337, 337-40 (1968).<\/p>\n
                                                                                                       93<\/span><\/p>\n
injury   that   caused   them   to   be   in   an   irreversible   coma,   and   had   lost   the  <\/p>\n
ability   to   breathe   spontaneously”6,   would   be   considered   dead.    This <\/p>\n
criticism led to the Presidents’ Committee, set up for the purpose, in 1981, <\/p>\n
defining death more vaguely as the point  “where the body’s physiological  <\/p>\n
system ceases to contribute a uniform whole”.\n<\/p>\n
\nThis   definition   of   whole   brain   death,   however,   is   not   without   its   critics. <\/p>\n
Some   argue   that   the   brain   is   not   always   responsible   for   all   bodily <\/p>\n
functioning- digestion, growth, and some degree of movement (regulated by <\/p>\n
the spinal cord) may not require any electrical activity in the brain. In order <\/p>\n
to combat this argument, and further explain what brain death could include, <\/p>\n
the President’s Committee on Bio-ethics in the United States of America in <\/p>\n
2008   came   up  with   a  new   definition   of  brain   death,   according   to   which   a <\/p>\n
person was considered to be brain dead when he could no longer perform the <\/p>\n
fundamental human work of an organism.  These are:<\/p>\n
“(1) “openness to the world, that is receptivity to stimuli and signals from  <\/p>\n
the surrounding environment,”\n<\/p>\n
\n (2) “the ability to act upon the world to obtain selectively what it needs.<\/p>\n
and (3) “the basic felt need that drives the organism to act … to obtain what  <\/p>\n
it needs.”7<\/p>\n
6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of  <\/p>\n
Death. 36 Am. J.L. & Med. 540 (2010).\n<\/p>\n
\n7 Ibid.\n<\/p>\n
\n                                                                                             94<\/span><\/p>\n
115.    When this situation is reached, it is possible to assume that the person <\/p>\n
is dead, even though he or she, through mechanical stimulation, may be able <\/p>\n
to breathe, his or her heart might be able to beat, and he or she may be able <\/p>\n
to take some form of nourishment. It is important, thus, that it be medically <\/p>\n
proved that a situation where any human functioning would be impossible <\/p>\n
should   have   been   reached   for   there   to   be   a   declaration   of   brain   death–<\/p>\n
situations where a person is in a persistent vegetative state but can support <\/p>\n
breathing,  cardiac  functions, and digestion  without  any  mechanical  aid are <\/p>\n
necessarily those that will not come within the ambit of brain death.<\/p>\n
116.    In   legal   terms,   the   question   of   death   would   naturally   assume <\/p>\n
significance   as   death   has   a   set   of  legal  consequences   as   well.   As   per   the <\/p>\n
definition   in   the   American   Uniform   Definition   of   Death   Act,   1980.   an <\/p>\n
individual who “sustain[s] . . . irreversible cessation of all functions of the  <\/p>\n
entire brain, including the brain stem, is dead.” This stage, thus, is reached <\/p>\n
at  a  situation where  not only  consciousness,   but every  other   aspect  of life <\/p>\n
regulated from the brain can no longer be so regulated. <\/p>\n
117.    In the case of `euthanasia’, however, the situation is slightly different. <\/p>\n
In these cases, it is believed, that a determination of when it would be right <\/p>\n
or fair to disallow resuscitation of a person who is incapable of expressing <\/p>\n
                                                                                               95<\/span><\/p>\n
his   or   her   consent   to   a   termination   of   his   or   her   life   depends   on   two <\/p>\n
circumstances:\n<\/p>\n<\/p>\n
        a. when a person is only kept alive mechanically, i.e. when not <\/p>\n
            only   consciousness   is   lost,   but   the   person   is   only   able   to <\/p>\n
            sustain   involuntary   functioning   through   advanced   medical <\/p>\n
            technology–such as the use of heart-lung machines, medical <\/p>\n
            ventilators etc.<\/p>\n
        b. when   there   is   no   plausible   possibility   of   the   person   ever <\/p>\n
            being able to come out of this stage. Medical “miracles” are <\/p>\n
            not unknown, but if a person has been at a stage where his <\/p>\n
            life is only sustained through medical technology, and there <\/p>\n
            has  been no significant  alteration  in the person’s condition <\/p>\n
            for  a   long  period  of  time–at   least  a   few years–then  there <\/p>\n
            can be a fair case made out for passive euthanasia.<\/p>\n<\/blockquote>\n
To extend this further, especially when a person is incapable of being able to <\/p>\n
give any consent, would amount to committing judicial murder. <\/p>\n
118.    In   this   connection   we   may   refer   to   the   Transplantation   of   Human <\/p>\n
Organs Act, 1994 enacted by the Indian Parliament.  Section 2(d) of  the Act <\/p>\n
states :\n<\/p>\n<\/p>\n
          “brain-stem death”  means  the  stage  at  which all  functions  of <\/p>\n
        the brain-stem have permanently and irreversibly ceased and is <\/p>\n
        so certified under sub-section (6) of section 3:”  <\/p>\n
                                                                                             96<\/span><\/p>\n<\/blockquote>\n
119.    Section 3(6) of the said Act states:\n<\/p>\n<\/p>\n
        “(6)   Where any human organ is to be removed  from the body of a <\/p>\n
person   in   the   event   of   his   brain-stem   death,   no   such   removal   shall   be <\/p>\n
undertaken unless such death is certified, in such form and in such manner <\/p>\n
and   on   satisfaction   of   such   conditions   and   requirements   as   may   be <\/p>\n
prescribed,   by   a   Board   of   medical   experts   consisting   of   the   following, <\/p>\n
namely:-\n<\/p>\n<\/p>\n
                (i)      the registered medical practitioner, in charge of the <\/p>\n
                         hospital in which brain-stem death has occurred;<\/p>\n<\/blockquote>\n
                (ii)     an   independent   registered   medical   practitioner, <\/p>\n
                         being   a   specialist,   to   be   nominated   by   the <\/p>\n
                         registered   medical   practitioner   specified   in   clause <\/p>\n<\/blockquote>\n
                         (i),   from   the   panel   of   names   approved   by   the <\/p>\n
                         Appropriate Authority;\n<\/p><\/blockquote>\n
<\/blockquote>\n
                (iii)    a   neurologist   or   a   neurosurgeon   to   be   nominated <\/p>\n
                         by the registered  medical  practitioner  specified in <\/p>\n
                         clause   (i),   from   the   panel   of   names   approved   by <\/p>\n
                         the Appropriate Authority; and <\/p>\n<\/blockquote>\n
                (iv)     the   registered   medical   practitioner   treating   the <\/p>\n
                         person whose brain-stem death has occurred”.<\/p>\n<\/blockquote>\n
120.    Although   the   above   Act   was   only   for   the   purpose   of   regulation   of <\/p>\n
transplantation   of   human   organs   it   throws   some   light   on   the   meaning   of <\/p>\n
brain death.\n<\/p>\n
\n                                                                                   97<\/span><\/p>\n
121.    From the above angle, it cannot be said that Aruna Shanbaug is dead. <\/p>\n
Even from the report of Committee of Doctors which we have quoted above <\/p>\n
it appears that she has some brain activity, though very little.<\/p>\n
122.    She recognizes that persons are around her and expresses her like or <\/p>\n
dislike   by   making   some   vocal   sound   and   waving   her   hand   by   certain <\/p>\n
movements.  She smiles if she receives her favourite food, fish and chicken <\/p>\n
soup.   She breathes normally and does not require a heart lung machine or <\/p>\n
intravenous tube for feeding.   Her pulse rate and respiratory rate and blood <\/p>\n
pressure are normal.   She was able to blink well and could see her doctors <\/p>\n
who examined her.   When an attempt was made to feed her through mouth <\/p>\n
she accepted a spoonful of water, some sugar and mashed banana.  She also <\/p>\n
licked the sugar and banana paste sticking on her upper lips and swallowed <\/p>\n
it.   She would get disturbed when many people entered her room, but she <\/p>\n
appeared to calm down when she was touched or caressed gently.  <\/p>\n
123.    Aruna Shanbaug meets most of the criteria for being in a permanent <\/p>\n
vegetative state which has resulted for 37 years.   However, her dementia has <\/p>\n
not progressed  and has remained stable for many years. <\/p>\n
                                                                                                   98<\/span><\/p>\n
124.    From the above examination by the team of doctors, it cannot be said <\/p>\n
that   Aruna   Shanbaug   is   dead.     Whatever   the   condition   of   her   cortex,   her <\/p>\n
brain stem is certainly alive.  She does not need a heart–lung machine.  She <\/p>\n
breathes on her own without the help of a respirator.  She digests food, and <\/p>\n
her body performs  other  involuntary function without any  help.   From the <\/p>\n
CD (which we had screened in the courtroom on 2.3.2011 in the presence of <\/p>\n
counsels and others) it appears that she can certainly not be called dead.  She <\/p>\n
was making some sounds, blinking, eating food put in her mouth, and even <\/p>\n
licking with her tongue morsels on her mouth.\n<\/p>\n<\/p>\n
125.    However, there appears little possibility of her coming out of PVS in <\/p>\n
which   she   is   in.    In  all   probability,   she   will   continue   to  be   in  the   state   in <\/p>\n
which she is in till her death.  The question now is whether her life support <\/p>\n
system (which is done by feeding her) should be withdrawn, and at whose <\/p>\n
instance?\n<\/p>\n
WITHDRAWAL   OF   LIFE   SUPPORT   OF   A   PATIENT   IN <\/p>\n
PERMANENT VEGETATIVE STATE (PVS)<\/p>\n
126.    There is no statutory provision in our country as to the legal procedure <\/p>\n
for   withdrawing   life   support   to   a   person   in   PVS   or   who   is   otherwise <\/p>\n
incompetent   to   take   a   decision   in   this   connection.     We   agree   with  Mr. <\/p>\n
                                                                                             99<\/span><\/p>\n
Andhyarujina that passive euthanasia should be permitted in our country in <\/p>\n
certain situations, and we disagree with the learned Attorney General that it <\/p>\n
should   never   be   permitted.    Hence,   following   the   technique   used   in <\/p>\n
Vishakha’s  case   (supra),   we   are   laying   down   the   law   in   this   connection <\/p>\n
which   will   continue   to   be   the   law   until   Parliament   makes   a   law   on   the <\/p>\n
subject.\n<\/p>\n<\/p>\n
       (i)     A   decision   has   to   be   taken   to   discontinue   life   support <\/p>\n
               either   by   the   parents   or   the   spouse   or   other   close <\/p>\n
               relatives,   or   in   the   absence   of   any   of   them,   such   a <\/p>\n
               decision   can   be   taken   even   by   a   person   or   a   body   of <\/p>\n
               persons acting as a next friend.   It can also be taken by <\/p>\n
               the doctors attending the patient.   However, the decision <\/p>\n
               should   be   taken   bona   fide   in   the   best   interest   of   the <\/p>\n
               patient.\n<\/p>\n<\/p>\n
                       In   the   present   case,   we   have   already   noted   that   Aruna <\/p>\n
               Shanbaug’s   parents   are   dead   and   other   close   relatives   are   not <\/p>\n
               interested  in her ever since she had the unfortunate assault on <\/p>\n
               her.  As already noted above, it is the KEM hospital staff, who <\/p>\n
               have been amazingly caring for her day and night for so many <\/p>\n
               long years, who really are her next friends, and not Ms. Pinky <\/p>\n
                                                                     100<\/span><\/p>\n
Virani who has only visited her on few occasions and written a <\/p>\n
book on her.  Hence it is for the KEM hospital staff to take that <\/p>\n
decision.   The KEM hospital staff have clearly expressed their <\/p>\n
wish that Aruna Shanbaug should be allowed to live.  <\/p>\n
       Mr.   Pallav   Shisodia,   learned   senior   counsel,   appearing <\/p>\n
for   the   Dean,   KEM   Hospital,   Mumbai,   submitted   that   Ms. <\/p>\n
Pinky Virani has no locus standi in this case.  In our opinion it <\/p>\n
is not necessary for us to go into this question since we are of <\/p>\n
the opinion that it is the KEM Hospital staff who is really the <\/p>\n
next friend of Aruna Shanbaug.\n<\/p>\n<\/p>\n
       We  do  not mean   to decry  or  disparage  what Ms.  Pinky <\/p>\n
Virani has done.  Rather, we wish to express our appreciation of <\/p>\n
the splendid social spirit she has shown.   We have seen on the <\/p>\n
internet that she has been espousing many social causes, and we <\/p>\n
hold her in high esteem.  All that we wish to say is that however <\/p>\n
much  her interest  in Aruna Shanbaug may  be it cannot match <\/p>\n
the   involvement   of   the   KEM   hospital   staff   who   have   been <\/p>\n
taking care of Aruna day and night for 38 years.\n<\/p>\n
\n                                                                                               101<\/span><\/p>\n
                        However, assuming that the KEM hospital staff at some <\/p>\n
                future time changes its mind, in our opinion in such a situation <\/p>\n
                the   KEM   hospital   would   have   to   apply   to   the   Bombay   High <\/p>\n
                Court  for  approval  of  the  decision  to  withdraw life support.<\/p>\n
        (ii)    Hence, even if a decision is taken by the near relatives or <\/p>\n
                doctors   or   next   friend   to   withdraw   life   support,   such   a <\/p>\n
                decision   requires   approval   from   the   High   Court <\/p>\n
                concerned as laid down in Airedale’s case (supra).    <\/p>\n
                        In our opinion, this is even more necessary in our country <\/p>\n
                as we cannot rule out the possibility of mischief being done by <\/p>\n
                relatives or others for inheriting the property of the patient.<\/p>\n
127.    In our opinion, if we leave it solely to the patient’s relatives or to the <\/p>\n
doctors or next friend to decide whether to withdraw the life support of an <\/p>\n
incompetent   person   there   is   always   a   risk   in   our   country   that   this   may   be <\/p>\n
misused   by   some   unscrupulous   persons   who   wish   to   inherit   or   otherwise <\/p>\n
grab   the   property   of   the   patient.     Considering   the   low   ethical   levels <\/p>\n
prevailing   in   our   society   today   and   the   rampant   commercialization   and <\/p>\n
corruption, we cannot rule out the possibility that unscrupulous persons with <\/p>\n
                                                                                              102<\/span><\/p>\n
the help of some unscrupulous doctors may fabricate material to show that it <\/p>\n
is   a   terminal   case   with   no   chance   of   recovery.     There   are   doctors   and <\/p>\n
doctors.     While   many   doctors   are   upright,   there   are   others   who   can   do <\/p>\n
anything   for   money   (see   George   Bernard   Shaw’s   play   `The   Doctors <\/p>\n
Dilemma’).     The   commercialization   of   our   society   has   crossed   all   limits. <\/p>\n
Hence we have to guard against the potential of misuse (see Robin Cook’s <\/p>\n
novel `Coma’).   In our opinion, while giving great weight to the wishes of <\/p>\n
the parents, spouse, or other close relatives or next friend of the incompetent <\/p>\n
patient and also giving due weight to the opinion of the attending doctors, <\/p>\n
we cannot leave it entirely to their discretion whether to discontinue the life <\/p>\n
support or not.  We agree with the decision of the Lord Keith in Airedale’s <\/p>\n
case   (supra)   that   the   approval   of   the   High   Court   should   be   taken   in   this <\/p>\n
connection.  This is in the interest of the protection of the patient, protection <\/p>\n
of the doctors, relative and next friend, and for reassurance of the patient’s <\/p>\n
family as well as the public.  This is also in consonance with the doctrine of <\/p>\n
parens patriae which is a well known principle of law.    <\/p>\n
DOCTRINE OF PARENS PATRIAE <\/p>\n
128.    The doctrine of Parens Patriae (father of the country)   had originated <\/p>\n
in  British  law  as  early   as  the 13th  century.   It  implies   that the  King  is the <\/p>\n
                                                                                                103<\/span><\/p>\n
father   of   the   country   and   is   under   obligation   to   look   after   the   interest   of <\/p>\n
those   who   are   unable   to   look   after   themselves.       The   idea   behind   Parens <\/p>\n
Patriae is that if a citizen is in need of someone who can act as a parent who <\/p>\n
can make decisions and take some other action, sometimes the State is best <\/p>\n
qualified to take on this role.\n<\/p>\n<\/p>\n
129.    In the Constitution Bench decision of this Court in Charan Lal Sahu <\/p>\n
vs.  Union of India<\/a>  (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine <\/p>\n
has been explained in some details as follows :\n<\/p>\n<\/p>\n
                         “In   the   “Words   and   Phrases”   Permanent   Edition, <\/p>\n
                Vol. 33 at page 99, it is stated that parens patriae is the <\/p>\n
                inherent  power and authority  of a legislature  to provide <\/p>\n
                protection to the person and property of persons  non sui  <\/p>\n
                juris,   such   as   minor,   insane,   and   incompetent   persons, <\/p>\n
                but the words parens patriae meaning thereby `the father <\/p>\n
                of the country’, were applied originally to the King and <\/p>\n
                are used to designate the State referring to its sovereign <\/p>\n
                power   of   guardianship   over   persons   under   disability. <\/p>\n
                Parens   patriae   jurisdiction,   it   has   been   explained,   is   the <\/p>\n
                right   of   the   sovereign   and   imposes   a   duty   on   the <\/p>\n
                sovereign,   in   public   interest,   to   protect   persons   under <\/p>\n
                disability   who   have   no   rightful   protector.     The <\/p>\n
                connotation   of   the   term   parens   patriae   differs   from <\/p>\n
                country to country, for instance, in England it is the King, <\/p>\n
                in   America   it   is   the   people,   etc.     The   government   is <\/p>\n
                within   its   duty   to   protect   and   to   control   persons   under <\/p>\n
                disability”.\n<\/p><\/blockquote>\n
\n                                                                                           104<\/span><\/p>\n<\/blockquote>\n
The duty of the King in feudal times to act as parens patriae (father of the <\/p>\n
country) has been taken over in modern times by the State.<\/p>\n
130.    In  Heller  vs.  DOE  (509) US 312 Mr. Justice  Kennedy speaking for <\/p>\n
the U.S. Supreme Court observed :\n<\/p>\n<\/p>\n
                 “the   State   has   a   legitimate   interest   under   its   parens <\/p>\n
               patriae  powers   in  providing   care  to  its  citizens   who  are <\/p>\n
               unable to care for themselves”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
131.    In State of Kerala vs. N.M. Thomas,<\/a> 1976(1) SCR 906 (at page 951) <\/p>\n
Mr. Justice Mathew observed :\n<\/p>\n<\/p>\n
                ” The Court also is `state’ within the meaning of Article <\/p>\n
               12 (of the Constitution).”.\n<\/p>\n<\/p>\n
132.    In our opinion, in the case of an incompetent person who is unable to <\/p>\n
take a decision whether to withdraw life support or not, it is the Court alone, <\/p>\n
as   parens   patriae,   which   ultimately   must   take   this   decision,   though,   no <\/p>\n
doubt, the views of the near relatives, next friend and doctors must be given <\/p>\n
due weight.\n<\/p>\n
UNDER   WHICH   PROVISION   OF   THE   LAW   CAN   THE   COURT <\/p>\n
GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN <\/p>\n
INCOMPETENT PERSON<\/p>\n
                                                                                             105<\/span><\/p>\n
133.    In   our   opinion,   it   is   the   High   Court   under   Article   226   of   the <\/p>\n
Constitution which can grant approval for withdrawal of life support to such <\/p>\n
an incompetent person.  Article 226(1) of the Constitution states :<\/p>\n
               “Notwithstanding   anything   in   article   32,   every   High <\/p>\n
               Court   shall   have   power,   throughout   the   territories   in <\/p>\n
               relation to which it exercises jurisdiction, to issue to any <\/p>\n
               person   or   authority,   including   in   appropriate   cases,   any <\/p>\n
               Government, within those territories directions, orders or <\/p>\n
               writs,   including   writs   in   the   nature   of  habeas   corpus, <\/p>\n
               mandamus,  prohibition,  quo warranto  and  certiorari,  or <\/p>\n
               any   of   them,   for   the   enforcement   of   any   of   the   rights <\/p>\n
               conferred by Part III and for any other purpose”.<\/p>\n<\/blockquote>\n
134.    A   bare   perusal   of   the   above   provisions   shows   that   the   High   Court <\/p>\n
under Article 226 of the Constitution is not only entitled to issue writs, but is <\/p>\n
also entitled to issue directions or orders.\n<\/p>\n<\/p>\n
135.    In  Dwarka   Nath  vs.  ITO  AIR   1966   SC   81(vide   paragraph   4)   this <\/p>\n
Court observed :\n<\/p>\n<\/p>\n
               “This   article   is   couched   in   comprehensive   phraseology <\/p>\n
               and it ex facie confers a wide power on the High Courts <\/p>\n
               to reach injustice wherever it is found.  The Constitution <\/p>\n
               designedly used a wide language in describing the nature <\/p>\n
               of   the   power,   the   purpose   for   which   and   the   person   or <\/p>\n
               authority against whom it can be exercised.   It can issue <\/p>\n
               writs in the nature of prerogative writs as understood in <\/p>\n
               England; but the scope of those writs also is widened by <\/p>\n
               the use of the expression “nature”, for the said expression <\/p>\n
               does not equate the writs that can be issued in India with <\/p>\n
               those in  England, but only draws an analogy from them. <\/p>\n
                                                                                               106<\/span><\/p>\n
                That apart, High Courts can also issue directions, orders <\/p>\n
                or writs other than the prerogative writs.   It enables the <\/p>\n
                High Courts to mould the reliefs to meet the peculiar and <\/p>\n
                complicated   requirements   of  this   country.     Any   attempt <\/p>\n
                to equate the scope of the power of the High Court under <\/p>\n
                Art.   226   of   the   Constitution   with   that   of   the   English <\/p>\n
                Courts   to   issue   prerogative   writs   is   to   introduce   the <\/p>\n
                unnecessary procedural restrictions grown over the years <\/p>\n
                in   a   comparatively   small   country   like   England   with   a <\/p>\n
                unitary form of Government to a vast country like India <\/p>\n
                functioning under a federal structure.”<\/p>\n<\/blockquote>\n
136.    The   above   decision   has   been  followed   by   this   Court  in  Shri   Anadi <\/p>\n
Mukta Sadguru  vs. V. R. Rudani AIR<\/a> 1989 SC 1607 (vide para 18).  <\/p>\n
137.    No doubt, the ordinary practice in our High Courts since the time of <\/p>\n
framing of the Constitution in 1950 is that petitions filed under Article 226 <\/p>\n
of the Constitution pray for a writ of the kind referred to in the provision. <\/p>\n
However, from the very language of the Article 226, and as explained by the <\/p>\n
above decisions, a petition can also be made to the High Court under Article <\/p>\n
226   of   the   Constitution   praying   for  an   order   or   direction,   and   not   for   any <\/p>\n
writ.   Hence, in our opinion, Article 226 gives abundant power to the High <\/p>\n
Court to pass suitable orders on the application filed by the near relatives or <\/p>\n
next friend or the doctors\/hospital staff praying for permission to withdraw <\/p>\n
the life support to an incompetent person of the kind above mentioned.   <\/p>\n
                                                                                                  107<\/span><\/p>\n
PROCEDURE   TO   BE   ADOPTED   BY   THE   HIGH   COURT   WHEN <\/p>\n
SUCH AN APPLICATION IS FILED<\/p>\n
138.    When such an application is filed the Chief Justice of the High Court <\/p>\n
should   forthwith   constitute   a   Bench   of   at   least   two   Judges   who   should <\/p>\n
decide to grant approval or not.  Before doing so the Bench should seek the <\/p>\n
opinion   of   a   committee   of   three   reputed   doctors   to   be   nominated   by   the <\/p>\n
Bench   after   consulting   such   medical   authorities\/medical   practitioners   as   it <\/p>\n
may deem fit.   Preferably one of the three doctors should be a neurologist, <\/p>\n
one should be a psychiatrist, and the third a physician.   For this purpose a <\/p>\n
panel   of   doctors   in   every   city   may   be   prepared   by   the   High   Court   in <\/p>\n
consultation   with   the  State   Government\/Union   Territory   and  their   fees  for <\/p>\n
this purpose may be fixed.\n<\/p>\n<\/p>\n
139.    The   committee   of   three   doctors   nominated   by   the   Bench   should <\/p>\n
carefully   examine  the  patient  and  also  consult   the   record  of  the  patient   as <\/p>\n
well   as   taking   the   views   of   the   hospital   staff   and   submit   its   report   to   the <\/p>\n
High Court Bench.\n<\/p>\n<\/p>\n
140.    Simultaneously   with   appointing   the   committee   of   doctors,   the   High <\/p>\n
Court   Bench   shall   also   issue   notice   to   the   State   and   close   relatives   e.g. <\/p>\n
parents,   spouse,   brothers\/sisters   etc.   of   the   patient,   and   in   their   absence <\/p>\n
                                                                                        108<\/span><\/p>\n
his\/her next friend, and supply a copy of the report of the doctor’s committee <\/p>\n
to them as soon as it is available.  After hearing them, the High Court bench <\/p>\n
should give its verdict.     The above procedure should be followed all over <\/p>\n
India until Parliament makes legislation on this subject. <\/p>\n
141.    The High Court should give its decision speedily at the earliest, since <\/p>\n
delay in the matter may result in causing great mental agony to the relatives <\/p>\n
and persons close to the patient.\n<\/p>\n<\/p>\n
142.    The High Court should give its decision assigning specific reasons in <\/p>\n
accordance with the principle of `best interest of the patient’ laid down by <\/p>\n
the   House   of   Lords   in  Airedale’s  case   (supra).   The   views   of   the   near <\/p>\n
relatives and committee of doctors should be given due weight by the High <\/p>\n
Court   before   pronouncing   a   final   verdict   which   shall   not   be   summary   in <\/p>\n
nature.\n<\/p>\n<\/p>\n
143.    With these observations, this petition is dismissed.<\/p>\n
144.    Before parting with the case, we would like to express our gratitude to <\/p>\n
Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by <\/p>\n
Ms.   Shubhangi   Tuli,   Ms.   Divya   Jain   and   Mr.   Vimal   Chandra   S.   Dave, <\/p>\n
                                                                                       109<\/span><\/p>\n
advocates,   the   learned   Attorney   General   for   India   Mr.   G.   E.   Vahanvati, <\/p>\n
assisted   by   Mr.   Chinmoy   P.   Sharma,   advocate,   Mr.   T.   R.   Andhyarujina, <\/p>\n
learned Senior Counsel, whom we had appointed as amicus curiae assisted <\/p>\n
by   Mr.   Soumik   Ghoshal,   advocate,   Mr.   Pallav   Shishodia,   learned   senior <\/p>\n
counsel,   assisted   by   Ms.   Sunaina   Dutta   and   Mrs.   Suchitra   Atul   Chitale, <\/p>\n
advocates   for   the   KEM   Hospital,   Mumbai   and   Mr.   Chinmoy   Khaldkar, <\/p>\n
counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and <\/p>\n
Ms. Asha Gopalan Nair, advocates, who were of great assistance to us.  We <\/p>\n
wish   to   express   our   appreciation   of   Mr.   Manav   Kapur,   Advocate,   who   is <\/p>\n
Law-Clerk-cum-Research  Assistant of one of us (Katju,  J.) as well as Ms. <\/p>\n
Neha   Purohit,   Advocate,   who   is   Law-Clerk-cum-Research   Assistant   of <\/p>\n
Hon’ble Justice Gyan Sudha Mishra.  We also wish to mention the names of <\/p>\n
Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students <\/p>\n
in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai, <\/p>\n
who were the interns of one of us (Katju, J.) and who were of great help in <\/p>\n
doing research in this case.\n<\/p>\n<\/p>\n
145.    We wish to commend the team of doctors of Mumbai who helped us <\/p>\n
viz.  Dr.   J.   V.   Divatia,   Professor   and   Head,   Department   of     Anesthesia, <\/p>\n
Critical   Care   and   Pain   at   Tata   Memorial   Hospital,   Mumbai;   Dr.   Roop <\/p>\n
                                                                                             110<\/span><\/p>\n
Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh <\/p>\n
Shah,   Professor   and   Head,   Department   of   Psychiatry   at   Lokmanya   Tilak <\/p>\n
Municipal Corporation Medical College and General Hospital.  They did an <\/p>\n
excellent job.\n<\/p>\n<\/p>\n
146.       We   also   wish   to   express   our   appreciation   of   Ms.   Pinki   Virani   who <\/p>\n
filed this petition.  Although we have dismissed the petition for the reasons <\/p>\n
given above, we regard her as a public spirited person who filed the petition <\/p>\n
for a cause she bona fide regarded as correct and ethical.   We hold her in <\/p>\n
high esteem.\n<\/p>\n<\/p>\n
147.       We   also   commend   the   entire   staff   of   KEM   Hospital,   Mumbai <\/p>\n
(including the retired staff) for their noble spirit and outstanding, exemplary <\/p>\n
and   unprecedented   dedication   in   taking   care   of   Aruna   for   so   many   long <\/p>\n
years.  Every Indian is proud of them.\n<\/p>\n<\/p>\n
                                                       ……………………………..J.\n<\/p>\n
                                                       (Markandey Katju)<\/p>\n
                                                          …………………………….J.\n<\/p>\n
                                                       (Gyan Sudha Misra)<\/p>\n
New Delhi:\n<\/p>\n
March 07, 2011 <\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 Bench: Markandey Katju, Gyan Sudha Misra 1 REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 115 OF 2009 Aruna Ramchandra Shanbaug .. Petitioner -versus- Union of India and others .. Respondents J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-186203","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aruna-ramchandra-shanbaug-vs-union-of-india-ors-on-7-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aruna Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 - 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