New Delhi, March 7 : The Supreme Court Monday rejected a petition for the mercy killing of Aruna Shanbaug, who has been in a "persistent vegetative state" for the past 37 years after being sodomised by a Mumbai hospital sweeper, but permitted withdrawal of her life support systems if allowed by the Bombay High Court.An apex court bench of Justice Markandey Katju and Justice Gyan Sudha Misra said that the "right to life guaranteed by Article 21 of the constitution does not include the right to die".
The Supreme Court's ruling came in the case of Aruna Shaunbag , who has spent 37 years in a Mumbai hospital bed in a coma, after she was brutally assaulted by her rapist. The court turned down a petition seeking her mercy killing, saying the hospital staff had expressed willingness to continue supporting her.
The court also recommended to Parliament to consider the feasibility of deleting the law which provides for punishment for attempt to commit suicide.
"We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid, the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in depression and hence s/he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code," said a bench comprising Justice Markandey Katju and Justice Gyan Sudha Misra in its judgement delivered on Monday.
Shanbaug's case was presented by activist Pinki Virani, who sought mercy killing of Shanbaug, bed ridden in King Edward Memorial Hospital, Mumbai, in a state of permanent vegetative state for 37 years, after being sodomised by a ward boy of the hospital on the night of November 27, 1973.
Rejecting the petition filed by Virani claiming to be the next friend of Shanbaug, the court said, the KEM hospital staff had clearly expressed their wish that Aruna Shanbaug should be allowed to live. If they change their mind in future, they would have to approach the Bombay High Court for approval of the decision to withdraw life support to her, the apex court said.
On passive euthanasia, the court said: "In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the court alone, as parents patriae (father of the country), which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight."
The bench said that the issue of mercy killing for such patients cannot be left solely in the hands of patient's relatives or doctors treating them as such a provision will be prone to misuse by those who want to appropriate an ill person's property.
"Considering the low ethical levels prevailing in our society today and the rampant commercialisation and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery," the court added. So, the apex court ordered for the mandatory judicial approval in the cases of passive euthanasia.
It asked the high courts to decide such cases expeditiously in the prescribed manner. When such issue comes before it, the Chief Justice of the High Court should constitute a bench of at least two judges who should decide to grant approval or not.
As a general principle, the apex court permitted passive euthanasia (mercy killing through withdrawal of a terminally-ill patient's life support systems) under certain circumstances provided it was backed by a declaration of the high court.
"Passive euthanasia is permissible under certain conditions with the approval of the high court," said the court, rejecting a petition moved on behalf of Shanbaug, 63-year-old comatose Mumbai nurse, by her friend and social activist Pinki Virani.
Virani had sought court's directions to stop feeding her so that she could die peacefully.
This principle of taking the approval of the high court would apply in the case of Shanbaug also in case the staff of Mumbai's King Edward Memorial (KEM) Hospital, where she is admitted, stop opposing the withdrawal of her life support systems.
"Assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw the life support," the apex court said.
While recording its appreciation of the social causes espoused by Virani, the apex court said: "…She (Pinki Virani) cannot claim to have an extent of attachment and bonding with Aruna (Shanbaug) which the KEM hospital staff, which has been looking after her for years, claim to have."
Appreciating the KEM hospital for the care it had taken of Shanbaug, the judgment said: "The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In her 38 years (of comatose existence), Aruna has not developed a single bed sore."
Speaking for the bench, Justice Katju said that active euthanasia is illegal as there is no statutory provision to support it.
Active euthanasia involves giving a lethal injection to a patient to put him or her to sleep, while passive euthanasia involves withdrawing the life support systems of a patient.
While considering pleas for withdrawal of a comatose patient's life support systems, the high court would grant its approval after getting the opinion of three eminent doctors and hearing the government and the close relatives of the terminally-ill patient, the judges said.
The court said that this "procedure should be followed all over India until parliament makes a legislation on this subject".
The judges disagreed with Virani's plea that the Shanbaug was already dead. Not feeding her any more and letting her die shall not amount to killing her.
Shanbaug was in PVS, which was different from the medical state of brain dead (which is irreversible), they said.
"Even when a person (patient) is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be 'alive'," said the judge.
Stating that there appeared little possibility (of Shanbaug coming out of PVS), the judges said: "The question now is whether her life support system (which includes feeding) should be withdrawn, and at whose instance."
"She (Virani) cannot claim to be as close and attached to Aruna Shanbaug as King Edward Memorial Hospital staff and nurses," the bench ruled.
"All that we wish to say is that however much her interest in Aruna Shanbaug may be, it cannot match the involvement of KEM hospital staff who have been taking care of Aruna day and night for 38 years," the judgment said.
Shanbaug, who was a nurse at the KEM hospital, has been in a comatose state ever since she was brutally sodomised by a hospital sweeper 37 years ago.
"Passive euthanasia is permissible under certain conditions with the approval of the high court," said the court, rejecting a petition moved on behalf of Shanbaug, 63-year-old comatose Mumbai nurse, by her friend and social activist Pinki Virani.
Virani had sought court's directions to stop feeding her so that she could die peacefully.
This principle of taking the approval of the high court would apply in the case of Shanbaug also in case the staff of Mumbai's King Edward Memorial (KEM) Hospital, where she is admitted, stop opposing the withdrawal of her life support systems.
"Assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw the life support," the apex court said.
While recording its appreciation of the social causes espoused by Virani, the apex court said: "…She (Pinki Virani) cannot claim to have an extent of attachment and bonding with Aruna (Shanbaug) which the KEM hospital staff, which has been looking after her for years, claim to have."
Appreciating the KEM hospital for the care it had taken of Shanbaug, the judgment said: "The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In her 38 years (of comatose existence), Aruna has not developed a single bed sore."
Speaking for the bench, Justice Katju said that active euthanasia is illegal as there is no statutory provision to support it.
Active euthanasia involves giving a lethal injection to a patient to put him or her to sleep, while passive euthanasia involves withdrawing the life support systems of a patient.
While considering pleas for withdrawal of a comatose patient's life support systems, the high court would grant its approval after getting the opinion of three eminent doctors and hearing the government and the close relatives of the terminally-ill patient, the judges said.
The court said that this "procedure should be followed all over India until parliament makes a legislation on this subject".
The judges disagreed with Virani's plea that the Shanbaug was already dead. Not feeding her any more and letting her die shall not amount to killing her.
Shanbaug was in PVS, which was different from the medical state of brain dead (which is irreversible), they said.
"Even when a person (patient) is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be 'alive'," said the judge.
Stating that there appeared little possibility (of Shanbaug coming out of PVS), the judges said: "The question now is whether her life support system (which includes feeding) should be withdrawn, and at whose instance."
"She (Virani) cannot claim to be as close and attached to Aruna Shanbaug as King Edward Memorial Hospital staff and nurses," the bench ruled.
"All that we wish to say is that however much her interest in Aruna Shanbaug may be, it cannot match the involvement of KEM hospital staff who have been taking care of Aruna day and night for 38 years," the judgment said.
Shanbaug, who was a nurse at the KEM hospital, has been in a comatose state ever since she was brutally sodomised by a hospital sweeper 37 years ago.
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