For over 40 years, Aruna Shanbaug lay in a permanent vegetative state in the KEM Hospital, Mumbai. Her condition was caused by being sodomised by a hospital assistant, who choked her with a dog chain, which did not kill her but caused brain damage, paralysis and cortical blindness. Aruna was looked after by the hospital’s doctors, nurses and staff with loving care but she remained in a highly vegetative state, with no prospect of reviving. After 37 years, a public-spirited social activist, Pinky Virani, petitioned the Supreme Court in 2011 to allow the withdrawal of medical support so that Aruna Shanbaug could die peacefully. On March 7, 2011, a bench of the Supreme Court, consisting of Justices Markandey Katju and Gyan Sudha Misra, decided the highly controversial problem of euthanasia. I was appointed amicus curiae to assist the court.
There were two questions involved in this petition. First, was it the duty of those who were looking after Aruna for over 37 years to continue such life support? Second, would it be unlawful to discontinue life support by withdrawing the Ryles nasogastric tube from the patient, inevitably leading to her death?
After considering the law in all countries of the world, the court held that what was demanded in the case was not active euthanasia but passive euthanasia. Active euthanasia entails the use of legal substances to kill a person — a lethal injection given to a person who is in terrible agony from an incurable disease. Passive euthanasia, on the other hand, entails withholding of medical treatment for the continuation of life, like not administering antibiotics without which the patient is likely to die or taking a patient in coma off the ventilator. The court noted that the general legal position worldwide was that, while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation, provided certain conditions and safeguards are maintained.
A patient is often not in a condition to express his or her will to terminate life (hence the need for making a “living will”). In such a situation, it is for the patient’s close relatives or “surrogates” to instruct medical attendants not to continue treatment. The Supreme Court in Aruna’s case held that passive euthanasia is permissible, but it should be done with proper safeguards, such as obtaining the opinion of a team of doctors and the sanction of the high court for the termination of life.
In Aruna’s case, although her condition was such that she would continue in a vegetative state for years, there was no relative who could make the decision to terminate her life. On the other hand, to their great credit, the dean, doctors and nurses of KEM Hospital made representations to the court taking on the duty of looking after Aruna till the end of her life. In these circumstances the court declined to give any relief to Pinky Virani and allowed the hospital to keep Aruna in a vegetative state. It is a matter of controversy whether the court should have done this.
The law laid down in Aruna Shanbaug’s case, however, has come to be doubted by another bench of the Supreme Court, which in 2014 questioned whether euthanasia should be left to be decided by Parliament. Also, in Gian Kaur’s case in 1996, the court had doubted whether the right to life included the right to die. It has referred the whole question to a larger constitutional bench.
It is now over a year since the Supreme Court doubted the decision of passive euthanasia in the Aruna Shanbaug case and required it to be considered by a larger bench. In England, a private bill, known as the assisted dying bill, was proposed in Parliament in 2013. Such legislation seems remote in India. In the interest of humanity, it is imperative that the Supreme Court decide the burning question of passive euthanasia expeditiously. Aruna Shanbaug will be remembered for her ordeal, and her death should mark in a turning point in the debate.
The writer is senior advocate, Supreme Court.