Lifting the Corporate Veil: The English and Indian Laws

Radhika Seelam

A Comparative Approach

INTRODUCTION:

Law recognizes a corporation as a separate legal entity. Since Salomon decision in 1897, the courts have often been called upon to apply the principle of separate legal personality. In some cases, the principle was upheld and in some others it was not. For centuries, there was a heated controversy over the applicability of the doctrine of separate legal entity and further to limit the theory of limited liability which is often metaphorically termed as “lifting the corporate veil”. It is defined by BLACK’S LAW DICTIONARY 1168 (7th ed. 1999) as “piercing the corporate veil: [t]he judicial act of imposing liability on otherwise immune corporate officers, directors, and shareholders for the corporation’s wrongful acts.”

The term “piercing the corporate veil” became well known after Maurice Wormser, a law professor at Fordham University, wrote his key article on the subject. (See Maurice Wormser, Piercing the Veil of Corporate Entity, 12 COLUMN. L. REV.496 (1912)).

THE ENGLISH DOCTRINE: A BRIEF HISTORY

The history of English Doctrine can be divided into three stages.

a) 1897-1966: This period may be called as the classical veil lifting or the early experimentation period., during which the English courts experimented with different approaches of the doctrine. The House of Lords decision in Salomon’s case dominated in this period.

b) 1966-1989: This period started after the second world war and this is the interventionist period. The rules of House of Lords in Salomon’s case were changed and the veil lifting was encouraged during this period. In Littlewoods mail stores v. IRC(1969) , Lord Denning stated :- “ the doctrine laid down in Salomon’s case has to be watched very carefully. It has often been supposed to cast a veil over the personality of a limited company through which the courts cannot see. But that is not true. The courts can, and often do, pull off the mask”. With of wanting of any hypothesis, the spirit of the doctrine in this period can be attributed to the most influential jurist of the twentieth century, Lord Denning.

c) 1989-the present: Much of the credit can be given to the Woolfson’s case at the beginning of this period. The doctrine of corporate veil lifting began to be disfavored by the courts in this period. Lord Keith in Woolfson v. Strathclyde Regional Council, stated that the one situation where a corporate veil could be lifted was whether there are special circumstances indicating that the company is a ‘mere façade concealing the true facts’.

After the high profile cases in 1990s which were decided against the doctrine of corporate veil lifting, it can be said that the veil lifting has become rare under the English Law. The judgment of the Court of Appeal in Adams v. Cape Industries Plc(1990) leaves only three circumstances when a corporate veil can be lifted. 1)If the court is interpreting a statute or document and the statute itself is ambiguous, which would allow the court to treat a group as a single entity. 2) If special circumstance indicate that it is a mere façade concealing the true facts, the courts may lift the veil. 3) The third exception is an application of the agency principle. Parent companies and subsidiaries are unlikely to have express agency agreements and it is even difficult to prove an implied agency. Evidence is required that day to day control was being exercised by the parent company over its subsidiaries.

One of the reactions of the Parliament to Salomon’s decision was that an offence of Fraudulent trading was introduced. This offence was continued in the Companies Act 1948 which contained both civil and criminal sanctions. Now criminal offence is contained section 993 of the Companies Act 2006 while the civil sanctions are contained in the Insolvency Act 1986, which operate to lift the corporate veil.

INDIAN LAW:-

As most of the provisions of Indian Law were borrowed from the English Law, it more or less resembles the English Law. Salomon’s case has been the authority ever since in the decisions of the doctrine in Indian company cases.

The Supreme Court in Tata Engineering Locomotive Co. Ltd v. State of Bihar & othrs (1964) stated: “the corporation in law is equal to a natural person and has a legal entity of its own. The entity of corporation is entirely separate from that of its shareholders; it bears its own names and has seal of its own; its assets are separate and distinct from those of its members; the liability of the members of the shareholders is limited to the capital invested by them; similarly, the creditors of the members have no right to the assets of the corporation.” In some of the cases, judicial decisions have no doubt lifted the veil. Gower has summarized the position with the observation that in a number of cases the legislature has rented in many respects, the veil woven by Salomon’s case. According to Gower, the courts have only construed the statutes as “cracking open the corporate shell” when compelled to do so by the clear words of the statute. Thus, even in India it can be seen that at present, the consensus is that cracking open the veil is somewhat cautious and circumspect.

In LIC of India v. Escorts Ltd (1986), Justice O.Chinnapa Reddy had stressed that the corporate veil should be lifted where the associated companies are inextricably connected as to be in reality, part of one concern. After the Bhopal Gas leak disaster case, the lifting of corporate veil has been escalated. Furthermore in State of UP v. Renusagar Power Company, the Supreme court lifted the veil and held that Hindalco, the holding company and its subsidiary, Renusagar company should be treated as one concern and that the Power Plant of Renusagar must be treated as the own source of generation of Hindalco and on that basis, Hindalco would be liable to pay the electric duty. After the decision in Renusagar case, the doctrine has been considered in several other cases.

 

STATUTORY PROVISIONS: INDIAN AND ENGLISH LAW

INDIAN LAW:

The Companies Act, 1956, provides for circumstances when a veil is to be lifted. These circumstances are as follows:-

1) When membership is reduced: Under section 45 of the Companies Act, when the number of members of a company are reduced below 7 in case of a public company and below 2 in case of a private company and the company continues to carry on its business for more than 6 months while the number is so reduced, every person who is a member of such company, knows this fact, is severally liable for the debts of the company contracted during that time.

2)Improper use of Name: Section 147(4) provides that an officer of a company who signs any Bill of Exchange, Hundi, Promissory note, cheque, wherein the name of the company is not mentioned in the prescribed manner, such officer shall be held personally liable to the holder of such Bill of exchange, hundi, promissory note or cheque as the case may be; unless it is duly paid by the company.

3) Fraudulent conduct: If in the course of winding up of a company, it appears that any business of the company has been carried on with the intent to defraud the creditors of the company or any other person or for any other fraudulent purpose, the persons who were knowingly parties to the carrying on of the business, in the manner aforesaid, shall be personally liable for all or any of the debts or other liabilities of the company, as the court may direct. [section 542]

4)Failure to refund application money: Section 69(5) of the Act provides that the directors of a company are jointly and severally liable to repay the application money with interest, if the company fails to refund the application money of those applicants who have not been allotted shares within 130 days from the date of issue of the prospectus. However, this does not in any way affect the very existence of the company or indeed its subsequent independent personality and other features.

 

ENGLISH LAW:

 

1) Doing business without trading certificate required under section 761(CA2006): Section 767(3) of the Companies Act 2006 provides that a contravention of section 761 does not affect the validity of a transaction entered into by the company, but if a company—

(a)enters into a transaction in contravention of that section, and

(b)fails to comply with its obligations in connection with the transaction within 21 days from being called on to do so,

the directors of the company are jointly and severally liable to indemnify any other party to the transaction in respect of any loss or damage suffered by him by reason of the company’s failure to comply with its obligations.

767(4): The directors who are so liable are those who were directors at the time the company entered into the transaction.

 

2)Disqualification of Directors: Under Section 15 of the Company directors disqualification Act 1986, if a person who has been disqualified from being a director of, or involved in the management of a company acts in contravention of his disqualification he will be liable for all those debts of the company which were incurred when he was so acting. The same applies to a person who knowingly acts on the instructions of a disqualified person or an undischarged bankrupt.

3) Offence of fraudulent trading (s.993, CA2006):

Criminal liability

(1)If any business of a company is carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, every person who is knowingly a party to the carrying on of the business in that manner commits an offence.

(2)This applies whether or not the company has been, or is in the course of being, wound up.

 

4) Fraudulent trading. (S.213 of the Insolvency Act 1986)

Civil liability

(1)If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the following has effect.

(2)The court, on the application of the liquidator may declare that any persons who were knowingly parties to the carrying on of the business in the manner above-mentioned are to be liable to make such contributions (if any) to the company’s assets as the court thinks proper.

 

5)Wrongful trading (S.214 of the Insolvency Act 1986)

It is similar to the provisions of section 213. This section operates only in cases of insolvent liquidation and the declaration can be made only against the person who at the time before the commencement of winding up was a director of the company and know or ought to have concluded that there was no reasonable perospect that the company would avoid going into liquidation. In this section “director” includes a shadow director.

6) Restriction on re-use of company names. ( section 216 of Insolvency Act 1986)

(1)This section applies to a person where a company (“the liquidating company”) has gone into insolvent liquidation on or after the appointed day and he was a director or shadow director of the company at any time in the period of 12 months ending with the day before it went into liquidation.

(2)For the purposes of this section, a name is a prohibited name in relation to such a person if—

(a)it is a name by which the liquidating company was known at any time in that period of 12 months, or

(b)it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company.

(3)Except with leave of the court or in such circumstances as may be prescribed, a person to whom this section applies shall not at any time in the period of 5 years beginning with the day on which the liquidating company went into liquidation—

(a)be a director of any other company that is known by a prohibited name, or

(b)in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company, or

(c)in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on (otherwise than by a company) under a prohibited name.

(4)If a person acts in contravention of this section, he is liable to imprisonment or a fine, or both

 

CURRENT SCENARIO:

In Volume 32A of Words and Phrases (West Publishing Company – third reprint 1989 p.84) the term “piercing the corporate veil” is described as, “the Court’s unwillingness to permit corporate presence and action to divert judicial course of applying law to ascertain facts”. When this principle is invoked, it is permissible to show that the individual hiding behind the corporation is liable to discharge the obligations ignoring the concept of corporation as a separate entity. Generally, an incorporated company is liable as a juristic person. It is different from its shareholders and Board of directors of Company. The acts of malfeasance and misfeasance and acts of misdemeanor by the shareholders and directors of a corporation (company), do not always bind the company as such. However so as to apply law to ascertained facts, judicial process can ignore juristic personality of the company and haul-up the directors and in certain cases even shareholders to discharge the legal obligations. When the corporate veil is lifted/pierced, it only means that the Court is assuming that the corporate entity of a concern is a sham to perpetuate the fraud, to avoid liability, to avoid effect of statute and to avoid obligations under a contract.

In Skipper Construction Company (Private) Limited (supra), the Supreme Court referred to the principle of lifting corporate veil. After referring Palmer’s Company Law as well as Modern Company Law by Gower, it was observed as under:-

The concept of corporate entity was evolved to encourage and promote trade and commerce but not to commit illegalities or to defraud people. The corporate veil indisputably can be pierced when the corporate personality is found to be opposed to justice, convenience and interest of the revenue or workman or against public interest.

In Trustor AB v. Smallbone (No.2)(2001), the Vice-Chancellor concluded:

“Companies are often involved in improprieties. Indeed there was some suggestion to that effect in Saloman v Saloman &Co. Ltd (1897) AC 22. But it would make undue roads into the principle of Saloman v Saloman if an impropriety not linked to the use of the company structure to avoid or conceal the liability of it if the company was used as a device or facadde to conceal the true facts thereby avoiding or concealing any liability of those individuals.”

Just as in the case of Jones v. Lipman (1962) the corporation must be the device through which the impropriety is conducted, impropriety alone will not suffice.

CONCLUSION:

The categorizations offered by Ottolenghi (1990) describes as to when the courts had lifted the veil in the past. But the future of doctrine is still ambiguous as to how the courts determine the question in a certain situation. Yet one can say that the courts shall lift the veil sometimes and refuse to do so in the other. It can be said that the corporate veil lifting is being considered on very rare occasions by the English Courts while the Indian doctrine is still in its transitory phase. The Indian courts ordinarily appreciate the facts of each case and decide on the merits.

 

REFERENCES

1) Salomon v. Salomon & Co. Ltd. [1897] A.C. 22.

2) Maurice Wormser, Piercing the Veil of Corporate Entity, 12 COLUMN. L. REV.496 (1912)

3) Littlewoods Mail Order Stores Ltd. v. IRC [1969] 1 W.L.R. 1241, 1254

4) Robert B. Thompson, Piercing the Corporate Veil: Is the Common Law the Problem? 37 CONN. L. REV. 619, 622 (2005).

5) Adams v Cape Industries Plc [1990] Ch. 433 (CA (Civ Div)

6) Life Insurance Corporation of India v. Escorts Ltd., AIR 1986 SC 1370

7) State of UP v. Renusagar Power Company (AIR 1988 SC 1737)

8) (See CIT v. Sri Meenakshi Mills Ltd., Workmen v. Associated Rubber Industry Ltd., New Horizons Ltd. v. Union of India, State of U.P. v. Renusagar Power Co., Hussainbhai v. Alath Factory Thezhilali Union and Secy., H.S.E.B. v. Suresh)

9) Delhi Development Authority v. Skipper Construction Co. (P) Ltd. (1997) 89 Comp Cas 362 (SC)

10) New Horizons Ltd. v. Union of India (1997) 89 Comp Cas 849 (SC)

11) Ottolenghi(1990): ‘From peeping behind the corporate veil to Ignoring it completely’ [1990] MLR 338 http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1990.tb01816.x/pdf

12) PIERCING THE CORPORATE VEIL AMONG AFFILIATED COMPANIES IN THE EUROPEAN COMMUNITY AND IN THE US.: A COMPARATIVE ANALYSIS OF U.S., GERMAN, AND U.K. VEIL-PIERCING APPROACHES American Business Law Journal Volume 36, Issue 1, pages 73–149, Fall 1998

13) Company Law by Alan Dignam &John Lowry 5th edition; Oxford publications UK

14) Woolfson v Strathclyde Regional Council [1978] UKHL 5: Lord Keith upheld the decision of the Scottish Court of Appeal, refusing to follow and doubting DHN v Tower Hamlets BC

15) DHN Food Distributors Ltd. v. Tower Hamlets London Borough Council (1976) 1 WLR 852

16) Company Law by Avtar Singh: 15th edition

17) Gallagher and Zeighler ‘Lifting the Corporate veil in Pursuit of Justice’[1990] JBL 292

18) Moore ‘A temple built on faulty foundations’[2006] JBL 180

19) Davies Gower and Davies’ Principles of modern company law, 8th edition ch: 8 & 9

Legalizing euthanasia in India

From:Asiya Savanur

INTRODUCTION

How is the value of life determined? Are rights to live and die equated? These are primary questions of conflict that every society has witnessed in the course of time. What is legally or morally right or what prevailed among life and death has been a debate over centuries now. The creation of rights of an individual take place with the birth of the individual and such rights extinguish with the death of the individual. In this broad spectrum, however, where does the right to live or the right to choose to die find its place is a righteous question. If sanctity of life is of supreme and overriding value; from the very primitive times, it ought to preclude and pro-scribe all acts and omissions which may shorten it, even when the shortening of life is a mere deleterious side effect. But this is not the case. The sanctity and value of life compete with a host of other equally potent moral demands. Even the most devout pro-life ethicist accepts that certain medical decisions – for instance, to administer strong analgesics – inevitably truncate the patient’s life. Again, doctors are not given the right to terminate any individual’s life with even the consent of the patient’s relatives going by the primal morals of the society. Yet, this is considered moral because the resulting euthanasia is not the main intention of the pain-relieving doctor. Moreover, the apparent dilemma between the two values (reduce suffering or preserve life) is non-existent. The thin line of difference of why death is morally wrong or the act of causing death even with due care is right is a debacle on its own. They are contradictory when put together so how exactly good death or bad death is justifiable is equally a paradox.

Looking back at arguments by famous jurists; Thomas Hobbes argued over fundamental duty to self preserve and how this is naturally a birth right. Hobbes’s social contract highlighted a theory which said that every individual hand over his rights to a person or a body they elect as their sovereign and relatively their actions are deemed to be authoritative. An exception that Hobbes pointed out was that that, as the purpose of signing the social contract was to preserve oneself, the Sovereign cannot order a subject to kill him- or herself. For instance, according to Nazi philosophy, certain people have ’a right’ to die and, if they cannot make the choice themselves, the state and its appointed boards of experts may have to exercise this right for them (Hentoff, 1998).

So how far does euthanasia or mercy killing conform to the basic morality standards of a society per se? Euthanasia: can be part of good terminal care. It makes no sense to discuss euthanasia in terms of being for it or against it. The basic question is whether we accept the right of human beings to decide for themselves how their lives will end. From the Greek and Roman era, the Stoic and Epicurean philosophers thought suicide and euthanasia an acceptable option whenever one no longer cared for life. The most famous statement of this attitude is by Epictetus: “If the room is smoky, if only moderately; I will stay. If there is too much smoke I will go. Remember this, keep a firm hold on it, the door is always open.”

Although there are Religious Objections as regards death unless occurred naturally one quote that shows that there is implied faith is; ”The right to a good death is a basic human freedom. The Supreme Court’s decision to uphold aid in dying allows us to view and act on death as a dignified moral and godly choice for those suffering with terminal illnesses.” John Shelby Spong, retired American bishop of the Episcopal Church.

Euthanasia and Morality

Does morality come into play in the form of bioethics as a main cause for not legalizing right to die? Doesn’t the discretion of a person and his right to choose death over life have any significance? Most of the jurists felt that morality needs to be given utmost importance and it’s morally incorrect to let any individual die. Quoting Jeremy Bentham’s analysis, “Jeremy Bentham (1748-1832) argued that the purpose of morality is not the service of God or obedience to abstract moral rules, but the promotion of the greatest possible happiness for creatures on earth. According to Bentham, our decisions should be made on that basis, and only on that basis. But Bentham did not stop when he had articulated this as a theoretical idea. He was concerned with bringing about social change and not merely with voicing a philosophy. Bentham became the leader of a group of philosophers, economists, and politicians who sought to reform the laws and institutions of England along utilitarian lines, and the social and intellectual life of people in the English-speaking countries has not been the same since. Bentham argued, for example, that in order to maximize happiness, the law should not seek to enforce abstract moral rules or meddle in the private affairs of citizens. What consenting adults do in private is strictly their own business, and the law has no right to interfere. The law should concern itself with people’s behavior only when they may do harm to others. This idea, now so familiar a part of liberal ideology, was radically new when the Benthamites first urged it on their fellow Englishmen. The implications for euthanasia were obvious. For the Utilitarianisms’, the question was simply this: Does it increase or decrease human happiness to provide a quick, painless death for those who are dying in agony? Clearly, they reasoned, the only consequences of such actions will be to decrease the amount of misery in the world; therefore, euthanasia must be morally right. Moreover, as Bentham’s famous follower John Stuart Mill (1806-1873) put it, the individual is sovereign over his own body and mind; where one’s own interests are concerned, there is no other authority. Therefore, if one wants to die quickly rather than linger in pain, which is strictly a personal affair and the government has no business intruding. Indeed, Bentham himself requested euthanasia in his last moments.” But applying this principle in the 21st century becomes unreasonable. Morality now has a diminishing value. At the very outset, the needs of the society are ought to be met with for the public benefit at large. If the majority gives a nod to the importance of pro-choice over pro-life then even a sovereign body can’t regulate it along the lines of morals and etiquettes.

ORIGIN OF EUTHANASIA

Thomas Mann had in 1924 said; a man’s dying is more the survivor’s affair than his own’. Today his words are considered to be true as there is a wide range of debate on legalizing euthanasia. Euthanasia has been accepted in some form or the other by certain societies in history. In ancient Rome and Greece helping to die or putting them to death was considered permissible in some situations. For instance, in the Greek city of Sparta newborns with severe birth defects were put to death. Voluntary euthanasia for the elderly was an approved custom in several ancient societies. The traditional Indian law also recognized a person’s right to die. In fact a Brahamana who committed suicide and thus got rid of his body was exalted in the world of Brahmanas.

What is Euthanasia?

Euthanasia is the practice of ending a person’s life in order to free the person from incurable pain of disease or terminal illness. The word Euthanasia derives from the Greek for “good death” and originally referred to intentional mercy killing. In modern times Euthanasia is limited to killing of patients at the request of the patients by the doctors to free the patient from terminal illness.

The legal position in other countries:

Netherlands

Under the Penal code of Netherlands, killing a person at his request or assisting a person in committing suicide is punishable under law. In spite of the code the Courts of Netherlands have come to ruling of providing a defense to a charge of voluntary Euthanasia and assisted suicide. Subsequent to these judicial decisions a Bill was passed in April 2001, Netherlands charted out a new chapter for legalizing euthanasia.

Australia

In 1996 the Northern Territory of Australia was the first jurisdiction to explicitly legalize voluntary active euthanasia; and thereby pass the Rights of the Terminally Ill Act, 1996. Later on the Federal Parliament of Australia had to pass Euthanasia laws Act, 1997 which inter alia repealed the Northern Territory legislation.

England

The patient has the right to refuse life-sustaining treatment as part of his rights of autonomy and self- determination. The non-voluntary euthanasia in case of patients in a persistent vegetative state is legalized.

United States of America

U.S laws prohibit active euthanasia. But the courts ruled that passive euthanasia is legalized as it says that doctors should not be punished if they withhold or withdraw a life-sustaining treatment at the request of patient. In 1991 Federal Patient Self-Determination Act, was made effective which required federally certified health-care facilities to notify adult patients of their rights to accept or refuse the medical treatment. The facilities should also inform the patients of their rights under the state laws to formulate advanced directives.

Canada

In Canada Patients have the similar rights as in case of U.S. to refuse life-sustaining treatment and formulate advanced directives. However, they do not possess right to active euthanasia or assisted suicide.

Euthanasia in United States

Euthanasia in the U.S is not a new concept; it came into existence much before any of the World Wars occurred. Although the debate was initiated in the 1900s, the issue was addressed only in the early 1960s under the rights of the patient to die and non-stringent bioethics. The underlying principle as to how Euthanasia needed to be legalized was similar in countries like India, Mexico, Canada, Netherlands etcetera. The landmark case that threw light upon Euthanasia was the Karen Ann Quinlan case. This case became the grund norm in medical ethics and a milestone precedent for similar cases that followed it. Karen Ann at the age of 21 became unconscious as a result of consumption of valium and alcohol from a party. Consequently, she stopped breathing for two intervals of 15 minutes which resulted in severe brain damage. She remained in coma and was later diagnosed as being in a Persistent Vegetative State (PVS). She was kept on ventilator but the attempts at reviving her were unsuccessful. Her parents asked for the ventilator to be removed and allow her to die. When the hospital refused the parents of Quinlan furthered the appeal to New Jersey Supreme Court which ruled in the favour. After removing the ventilator, she breathed and eventually after nine years died of pneumonia. This is a landmark case because it recurred two main issues: (i) Bioethics, (ii) Right to die.

Terri Schiavo case: Terri Schiavo collapsed at her Florida residence on February 25th 1990. It resulted in loss of oxygen to the brain for a span of 5-6 minutes. She consequently went into the PVS. Thereafter, the parents of Terri Schiavo declared Michael (her husband) to be the guardian. In May 1998, Michael filed a petition to remove Terri’s feeding tube which was opposed by her parents as they alleged that Michael sole motive was to inherit her property and hence wanted her death. Terri, whereas, wished to end her life. A series of events to keep her alive happened; both politically and religiously assisted. There remained a delay of 7 years in granting relief. On March 18, 2005, Judge Greer pronounced a decision in favour of Michael to remove all the ventilators and food ingestion tubes. This case laid clear distinction between the pro-life and right-to-die choice and had a global impact. As the judgment passed by the media, made global awareness.

Cases of Euthanasia in the U.S were predominantly witnessed in states like Washington, Missouri, Oregon, Montana and Texas.

In State of Missouri, initially Euthanasia gathered no support in the Supreme Court of Missouri. Curzan v. Director, Missouri Department of Health 497 U.S. 261 — This is the similar case to the aforementioned cases. Nancy Curzan, the Petitioner sustains severe injuries in an accident which resulted in a condition of PVS. She was fed through feeding tube and after 4 years of wait to see her recover, her parents and husband asked for withdrawal of any kind of treatment given to her. The department’s refusal drove them to the Supreme Court of Missouri. In the first appeal, the court favoured the Missouri Dept. of Health since there were no clear and substantial evidence shown. In the second appeal though, Curzans could gather enough substantial evidence stating that Nancy herself wanted her life support to be cut off and eventually court granted decision in her favour in the late 1990.

Oregon, on the other hand, became the first U.S state to legalize physician-assisted-dying by passing the Oregon Death with Dignity Act in 1994. In 1997, this act was in question for its repeal; the implementation of the act was technically withheld for a restricted period. The implementation of the law became successful in the case of Gonzales v. Oregon; 546 U.S. 243 2006 — This case gave the co-relation between Controlled Substance Act and PAD and also brought about legalization of PAD under the Oregon Death with Dignity Act. The Petitioner used the Interpretive Rule that administering federally controlled drugs by the physician goes against Controlled Substance Act. The State of Oregon which comprised of various pharmacists, terminally ill patients filed for permanent injunction against the enforcement of Interpretive Rule. Ninth Circuit Court of Appeals ruled in State’s favour (Justice Kennedy affirmed Ninth Circuit’s judgment in a 6-3 decision.)

The Washington State also upheld Physician Aid in Dying. Very recently in the year of 2008: Washington v. Glucksberg 521 U.S. 702 1997 — This case gave the clear interpretation of Due Process Clause in the United States Constitution and whether or not does it protect right to assistance by physician in committing suicide. Dr. Harold Glucksberg – a physician, along with other physicians 3 terminally ill patients and a non-profit organization filed a petition challenging Washington’s ban against suicide which was claimed to be protected under the Due Process Clause. The District Court ruled in favour of Glucksberg. But subsequently, Ninth Circuit reversed. After re-hearing Ninth Circuit affirmed the District Court’s decision.

In toto, attempts to legalize Physician Assisted Dying and Euthanasia resulted in ballot initiatives and legislation bills in the US. For instance, Death with Dignity Act in 1994 became one of its first kinds that the U.S jurisdiction brought about to the world. The cases became principle precedents for other nations to decide the legality of Euthanasia/PAD.

INDIAN LAWS

India is a country highly influenced by religion and orthodox beliefs. Let’s examine the validity of euthanasia under the Indian Laws.

Under Constitution of India:

Article-21 confers a fundamental right; Right to Life and Personal Liberty. This Right has a wider application and cannot be defined.

Human rights are those which are derived from natural law which have evolved out of natural rights; rights inherent to people by virtue of their being human and being of a moral and rational nature and having a common capacity to reason. This comprises a core base of basic guarantees, including the right to life; freedom from torture or inhuman or degrading treatment or punishment; freedom from slavery, servitude, and forced labour; the right to free movement; and, the right to food, as a human right, the right to development is also considered to be a basic human right .

From the above mentioned case it can be said that human rights are the rights which person gets from its human existence and the said human right gives the person the right to development when a person is terminally ill or is suffering from incurable disease then in such situation euthanasia should be allowed if not allowed it would violate his human right of development. It was held in a case that the right to life includes the right to carry on such functions and activities adequate to give expression to “human self ”.

In this context it could be interpreted that euthanasia should be legalized as the life of an individual becomes meaningless or useless if the person is not able to carry on functions as held in the above case it’s the right of the person under the right to life and such a right is violated if a patient is forced to live when suffering from terminal illness.

Path-Breaking Judgement:

A landmark Judgment was passed by Justice MarkandeyKatju and GyanSudha Mishra which tends to legalize passive euthanasia. This case was filed for grant of permission by one writer-cum-social activist Pinky Virani on behalf of ArunaRamachandraShanbaug, a hapless comatose victim of sexual assault who has been in persistent vegetative state for the past 37 years at Mumbai’s KEM Hospital. During Aruna’s case, the learned Judges commented on deletion of the section-309 of IPC as it has become anachronistic. It was further held in Aruna’s case that in case the patient is in competent person to decide whether life support system should be discontinued then in such situation the family member or close relatives or in their absence doctors attending patient can decide in best interest of patient with the bonafide intention. However, such a decision requires approval from the concerned High Court.

Law Commission Report:

It must be remembered that the 17th Law Commission of India then headed by Justice M. JagannadhaRao in its 196th Report submitted in April,2006 titled ‘Medical Treatment to Terminally Ill-patients (Protection of patients and Medical Practitioners)’ had supported and made recommendations for drafting legislation on the passive euthanasia.

Legalization of Euthanasia

Legalization of euthanasia simply means granting an individual his natural right to die or terminate his life owing to non-normalcy of life or bad quality of life due to medical reasons. Attempt to suicide under mental coercion is punishable under law, but asking for granting of death due to perpetual suffering of an individual is not punishable. In most of the cases when an individual suffers with Persistent Vegetative State (PVS), the court grants physician assisting suicide with a standing consent from the patient showing his willingness to die and there is no undue influence while deciding so. The willingness should be out of the ground fact that there is no hope in improvement in quality of life in the future.

Why should euthanasia be legalized?

Moral Objectives: It is morally incorrect to keep a person fighting for no cause when all hope is lost. The sufferer and his fraternity go through mental trauma for a long period of time. The society is obligated to acknowledge the rights of patients and to respect the decisions of those who elect euthanasia. Every individual’s right to self-determination or his right of privacy needs to be respected. Interference to such rights can be justified if it is to protect values, which is not the case where patients suffering unbearably at the end of their lives request euthanasia leaving them with no alternatives. People can’t suffer against their will. It is plain cruelty on them and cessation of their human rights and dignity.

Individual’s right to exercise his choice: Firstly deciding if one wants to live or die is a personal decision. Every individual has his/her own rights over their body. When the birth of an individual is not questioned by anyone naturally death as well should not be a speculative debate. A painless death is better than a painful life. The increase in patients of Cancer, AIDS and other dreadful and irreparable diseases has sparked a world-wide need of euthanasia or mercy killing. Especially in the final stages of such diseases which are incurable the want of euthanasia is justified.

Economic Factor: Economic concern in a country like India is of primary importance. The medical charges are unaffordable for the needed medical care; unsure if the patient is going to improve in any possible way or remain as he is. And every irreparable disease attracts a big amount of risk and money which can’t be ignored. Moreover, there is increasing pressure on hospital and medical facilities; it is argued that the same facilities should be used for the benefit of other patients who have a better chance of recovery and to whom these facilities provided by the hospital would be of greater value. Thus, the argument runs, when one has to choose between a patient beyond recovery and one who may be saved, the latter should be preferred as the former will die in any case.

Euthanasia, both in active and passive form, should be allowed in every society. It should be legalized owing to the amount of pain an individual goes through due to the fatal disease or disorder for a long period of time. Having a patient suffer endlessly is not giving him a better quality of life. The kind of quality of life is defined by the patient, not the doctor or government. Consequently, when the patient feels he is not getting the quality of life he wants the doctors can insist upon Physician Assisted Death (PAD). Supporters of active euthanasia contend that since society has acknowledged a patient’s right to passive euthanasia (for example, by legally recognizing refusal of life-sustaining treatment), active euthanasia should similarly be permitted. Court needs to lay reasonable grounds as to why there is a refusal in the first place to grant euthanasia; be it active or passive. When arguing on behalf of legalizing active euthanasia, proponents emphasize circumstances in which a condition has become overwhelmingly burdensome for the patient, pain management for the patient is inadequate, and only death seems capable of bringing relief. In a liberal democracy like India where Fundamental Rights are given highest significance over any other substantial law, right to die should be treated at par with the fundamentals of the constitution.

Euthanasia is a way of ending a person’s life who has been suffering from intolerable pain or undignified death. Various countries have legalized it. The debate regarding euthanasia has going on from very long time but only recently euthanasia gained massive importance. After the landmark judgment passed by the Indian Court in Aruna’s case it’s clear that passive euthanasia is now allowed in India. But still there is some ambiguity with regard to euthanasia. Hence there has been an urgent need to pass legislation on euthanasia. Law on euthanasia is the need of the hour.