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REPORTABLE
ITEM NO.1A COURT NO.6 SECTION X

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

WRIT PETITION (CRL.) NO(s). 115 OF 2009

ARUNA RAMCHANDRA SHANBAUG Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

[HEARD BY HON'BLE MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.)

Date: 07/03/2011 This Writ Petition was called on for Judgment today.

Amicus Curiae Mr. G.E. Vahanvati, Attorney General(Not present)

Mr. Chinmoy P. Sharma, Adv.
Dr. Aaray Lingaiah, Adv.
Mr. Nishanth Patil, Adv.
Mr. Anoopam Prasad, Adv.
Ms. Naila Jung, Adv.
Mr. Rohit Sharma, Adv.
Mr. D.D.Kamat, Adv.
Mr. D.S.Mahra, Adv.

Amicus Curiae Mr. T.R. Andhyarujina, Sr. Adv.

Mr. Soumik Ghosal, Adv.

For Petitioner(s) Mr. Shekhar Naphade, Sr. Adv.

Ms. Shubhangi Tuli, Adv.
Ms. Divya Jain, Adv.
Mr. Vimal Chandra S. Dave,Adv.

For Respondent(s) Ms. Sunaina Dutta, Adv.

Mrs.Suchitra Atul Chitale,Adv.

Ms. Asha Gopalan Nair, Adv.

Hon'ble Mr. Justice Markandey Katju pronounced the

judgment of the Bench comprising His Lordship and Hon'ble
Mrs. Justice Gyan Sudha Misra.

For the reasons given in the reportable judgment which

is placed on the file, the writ petition is dismissed.

(Parveen Kr.Chawla) ( Indu Satija )

Court Master Court Master
 2

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 U D G M E N T

Markandey Katju, J.

“Marte hain aarzoo mein marne ki

Maut aati hai par nahin aati”

-- Mirza Ghalib

1. Heard Mr. Shekhar Naphade, learned senior

counsel for the petitioner, learned Attorney General

for India for the Union of India Mr. Vahanvati, Mr.

T. R. Andhyarujina, learned Senior Counsel, whom we

had appointed as amicus curiae, Mr. Pallav Sisodia,

learned senior counsel for the Dean, KEM Hospital,

Mumbai, and Mr. Chinmay Khaldkar, learned counsel

 3

for the State of Maharashtra.

2. Euthanasia is one of the most perplexing issues

which the courts and legislatures all over the world

are facing today. This Court, in this case, is

facing the same issue, and we feel like a ship in an

uncharted sea, seeking some guidance by the light

thrown by the legislations and judicial

pronouncements of foreign countries, as well as the

submissions of learned counsels before us. The case

before us is a writ petition under Article 32 of the

Constitution, and has been filed on behalf of the

petitioner Aruna Ramachandra Shanbaug by one Ms.

Pinki Virani of Mumbai, claiming to be a next

friend.

3. It is stated in the writ petition that the

petitioner Aruna Ramachandra Shanbaug was a staff

Nurse working in King Edward Memorial Hospital,

Parel, Mumbai. On the evening of 27th November, 1973

she was attacked by a sweeper in the hospital who

wrapped a dog chain around her neck and yanked her

 4

back with it. He tried to rape her but finding that

she was menstruating, he sodomized her. To

immobilize her during this act he twisted the chain

around her neck. The next day on 28th November, 1973

at 7.45 a.m. a cleaner found her lying on the floor

with blood all over in an unconscious condition. It

is alleged that due to strangulation by the dog

chain the supply of oxygen to the brain stopped and

the brain got damaged. It is alleged that the

Neurologist in the Hospital found that she had

plantars' extensor, which indicates damage to the

cortex or some other part of the brain. She also had

brain stem contusion injury with associated cervical

cord injury. It is alleged at page 11 of the

petition that 36 years have expired since the

incident and now Aruna Ramachandra Shanbaug is about

60 years of age. She is featherweight, and her

brittle bones could break if her hand or leg are

awkwardly caught, even accidentally, under her

lighter body. She has stopped menstruating and her

skin is now like papier mache' stretched over a

skeleton. She is prone to bed sores. Her wrists are

 5

twisted inwards. Her teeth had decayed causing her

immense pain. She can only be given mashed food, on

which she survives. It is alleged that Aruna

Ramachandra Shanbaug is in a persistent negetative

state (p.v.s.) and virtually a dead person and has

no state of awareness, and her brain is virtually

dead. She can neither see, nor hear anything nor can

she express herself or communicate, in any manner

whatsoever. Mashed food is put in her mouth, she is

not able to chew or taste any food. She is not even

aware that food has been put in her mouth. She is

not able to swallow any liquid food, which shows

that the food goes down on its own and not because

of any effort on her part. The process of digestion

goes on in this way as the mashed food passes

through her system. However, Aruna is virtually a

skeleton. Her excreta and the urine is discharged on

the bed itself. Once in a while she is cleaned up

but in a short while again she goes back into the

same sub-human condition. Judged by any parameter,

Aruna cannot be said to be a living person and it is

only on account of mashed food which is put into her

 6

mouth that there is a facade of life which is

totally devoid of any human element. It is alleged

that there is not the slightest possibility of any

improvement in her condition and her body lies on

the bed in the KEM Hospital, Mumbai like a dead

animal, and this has been the position for the last

36 years. The prayer of the petitioner is that the

respondents be directed to stop feeding Aruna, and

let her die peacefully.

4. We could have dismissed this petition on the

short ground that under Article 32 of the

Constitution of India (unlike Article 226) the

petitioner has to prove violation of a fundamental

right, and it has been held by the Constitution

Bench decision of this Court in Gian Kaur vs.

State of Punjab, 1996(2) SCC 648 (vide paragraphs 22

and 23) that the right to life guaranteed by Article

21 of the Constitution does not include the right to

die. Hence the petitioner has not shown violation

of any of her fundamental rights. However, in view

of the importance of the issues involved we decided

 7

to go deeper into the merits of the case.

5. Notice had been issued by this Court on

16.12.2009 to all the respondents in this petition.

A counter affidavit was earlier filed on behalf of

the respondent nos.3 and 4, the Mumbai Municipal

Corporation and the Dean, KEM Hospital by Dr. Amar

Ramaji Pazare, Professor and Head in the said

hospital, stating in paragraph 6 that Aruna accepts

the food in normal course and responds by facial

expressions. She responds to commands intermittently

by making sounds. She makes sounds when she has to

pass stool and urine which the nursing staff

identifies and attends to by leading her to the

toilet. Thus, there was some variance between the

allegations in the writ petition and the counter

affidavit of Dr. Pazare.

6. Since there was some variance in the allegation

in the writ petition and the counter affidavit of

Dr. Pazare, we, by our order dated 24 January, 2011

appointed a team of three very distinguished doctors

 8

of Mumbai to examine Aruna Shanbaug thoroughly and

submit a report about her physical and mental

condition. These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head,

Department of
Anesthesia, Critical Care and Pain at Tata
Memorial
Hospital, Mumbai;

(2) Dr. Roop Gursahani, Consultant Neurologist at

P.D.Hinduja, Mumbai; and

(3) Dr. Nilesh Shah, Professor and Head,

Department of Psychiatry at Lokmanya Tilak
Municipal Corporation
Medical College and General Hospital.

7. In pursuance of our order dated 24th January,

2011, the team of three doctors above mentioned

examined Aruna Shanbuag in KEM Hospital and has

submitted us the following report:

“ Report of Examination of Ms. Aruna Ramachandra Shanbaug

Jointly prepared and signed by

1. Dr. J.V. Divatia

(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani

(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah

 9

(Professor and Head, Department of Psychiatry at Lokmanya

Tilak Municipal Corporation Medical College and General
Hospital).

I. Background

As per the request of Hon. Justice Katju and Hon.

Justice Mishra of the Supreme Court of India, Ms. Aruna
Ramachandra Shanbaug, a 60-year-old female patient was
examined on 28th January 2011, morning and 3rd February
2011, in the side-room of ward-4, of the K. E. M. Hospital
by the team of 3 doctors viz. Dr. J.V. Divatia (Professor
and Head, Department of Anesthesia, Critical Care and
Pain at Tata Memorial Hospital, Mumbai), Dr. Roop
Gursahani (Consultant Neurologist at P.D. Hinduja
Hospital, Mumbai) and Dr. Nilesh Shah (Professor and
Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General
Hospital).

This committee was set up because the Court found

some variance between the allegations in the writ petition
filed by Ms. Pinki Virani on behalf of Aruna Ramchandras
Shanbaug and the counter affidavit of Dr. Pazare. This
team of three doctors was appointed to examine Aruna
Ramachandra Shanbaug thoroughly and give a report to
the Court about her physical and mental condition

It was felt by the team of doctors appointed by the

Supreme Court that longitudinal case history and
observations of last 37 years along with findings of
examination will give a better, clear and comprehensive
picture of the patient’s condition.

This report is based on:

1. The longitudinal case history and observations obtained

from the Dean and the medical and nursing staff of K. E.
M. Hospital,
 10

2. Case records (including nursing records) since January

2010
3. Findings of the physical, neurological and mental status
examinations performed by the panel.
4. Investigations performed during the course of this
assessment (Blood tests, CT head, Electroencephalogram)

II. Medical history

Medical history of Ms. Aruna Ramachandra

Shanbaug was obtained from the Dean, the Principal of the
School of Nursing and the medical and nursing staff of
ward-4 who has been looking after her.

It was learnt from the persons mentioned above that

1. Ms. Aruna Ramachandra Shanbaug was admitted in the

hospital after she was assaulted and strangulated by a
sweeper of the hospital on November 27, 1973.
2. Though she survived, she never fully recovered from the
trauma and brain damage resulting from the assault and
strangulation.
3. Since last so many years she is in the same bed in the
side-room of ward-4.
4. The hospital staff has provided her an excellent nursing
care since then which included feeding her by mouth,
bathing her and taking care of her toilet needs. The care
was of such an exceptional nature that she has not
developed a single bed-sore or fracture in spite of her bed-
ridden state since 1973.
5. According to the history from them, though she is not
very much aware of herself and her surrounding, she
somehow recognizes the presence of people around her
and expresses her like or dislike by making certain types of
vocal sounds and by waving her hands in certain manners.
She appears to be happy and smiles when she receives her
favorite food items like fish and chicken soup. She accepts
feed which she likes but may spit out food which she
 11

doesn’t like. She was able to take oral feeds till 16th
September 2010, when she developed a febrile illness,
probably malaria. After that, her oral intake reduced and a
feeding tube (Ryle’s tube) was passed into her stomach via
her nose. Since then she receives her major feeds by the
Ryle’s tube, and is only occasionally able to accept the oral
liquids. Malaria has taken a toll in her physical condition
but she is gradually recuperating from it.
6. Occasionally, when there are many people in the room
she makes vocal sounds indicating distress. She calms
down when people move out of her room. She also seems
to enjoy the devotional songs and music which is played in
her room and it has calming effect on her.

7. In an annual ritual, each and every batch of nursing

students is introduced to Ms. Aruna Ramachandra
Shanbaug, and is told that “She was one of us”; “She was a
very nice and efficient staff nurse but due to the mishap
she is in this bed-ridden state”.

8. The entire nursing staff member and other staff members

have a very compassionate attitude towards Ms. Aruna
Ramachandra Shanbaug and they all very happily and
willingly take care of her. They all are very proud of their
achievement of taking such a good care of their bed-ridden
colleague and feel very strongly that they want to continue
to take care of her in the same manner till she succumbs
naturally. They do not feel that Ms. Aruna Ramachandra
Shanbaug is living a painful and miserable life.

III. Examination

IIIa. Physical examination

She was conscious, unable to co-operate and

appeared to be unaware of her surroundings.

Her body was lean and thin. She appeared neat and
clean and lay curled up in the bed with movements of the
left hand and made sounds, especially when many people
were present in the room.
 12

She was afebrile, pulse rate was 80/min, regular, and

good volume. Her blood pressure recorded on the nursing
charts was normal. Respiratory rate was 15/min, regular,
with no signs of respiratory distress or breathlessness.

There was no pallor, cyanosis, clubbing or icterus.

She was edentulous (no teeth).

Skin appeared to be generally in good condition,

there were no bed sores, bruises or evidence of old healed
bed sores. There were no skin signs suggestive of
nutritional deficiency or dehydration.

Her wrists had developed severe contractures, and

were fixed in acute flexion. Both knees had also developed
contractures (right more than left).

A nasogastric feeding tube (Ryle‟s tube) was in situ.

She was wearing diapers.

Abdominal, respiratory and cardiovascular

examination was unremarkable.

IIIb. Neurological Examination

When examined she was conscious with eyes open

wakefulness but without any apparent awareness (see
Table 1 for detailed assessment of awareness). From the
above examination, she has evidence of intact auditory,
visual, somatic and motor primary neural pathways.
However no definitive evidence for awareness of auditory,
visual, somatic and motor stimuli was observed during our
examinations.

There was no coherent response to verbal commands

or to calling her name. She did not turn her head to the
direction of sounds or voices. When roused she made non-
specific unintelligible sounds (“uhhh, ahhh”) loudly and
continuously but was generally silent when undisturbed.
 13

Menace reflex (blinking in response to hand

movements in front of eyes) was present in both eyes and
hemifields but brisker and more consistent on the left.
Pupillary reaction was normal bilaterally. Fundi could not
be seen since she closed her eyes tightly when this was
attempted. At rest she seemed to maintain preferential gaze
to the left but otherwise gaze was random and undirected
(roving) though largely conjugate. Facial movements were
symmetric. Gag reflex (movement of the palate in response
to insertion of a tongue depressor in the throat) was present
and she does not pool saliva. She could swallow both
teaspoonfuls of water as well as a small quantity of mashed
banana. She licked though not very completely sugar
smeared on her lips, suggesting some tongue control.

She had flexion contractures of all limbs and seemed

to be incapable of turning in bed spontaneously. There was
what appeared to be minimal voluntary movement with the
left upper limb (touching her wrist to the eye for instance,
perhaps as an attempt to rub it). When examined/disturbed,
she seemed to curl up even further in her flexed foetal
position. Sensory examination was not possible but she did
seem to find passive movement painful in all four limbs
and moaned continuously during the examination. Deep
tendon reflexes were difficult to elicit elsewhere but were
present at the ankles. Plantars were withdrawal/extensor.

Thus neurologically she appears to be in a state of

intact consciousness without awareness of
self/environment. No cognitive or communication abilities
could be discerned. Visual function if present is severely
limited. Motor function is grossly impaired with
quadriparesis.

IIIc. Mental Status Examination

1. Consciousness, General Appearance, Attitude and Behavior :

Ms. Aruna Ramachandra Shanbaug was resting

quietly in her bed, apparently listening to the devotional
music, when we entered the room. Though, her body built
 14

is lean, she appeared to be well nourished and there were

no signs of malnourishment. She appeared neat and clean.
She has developed contractures at both the wrist joints and
knee joints and so lied curled up in the bed with minimum
restricted physical movements.

She was conscious but appeared to be unaware of

herself and her surroundings. As soon as she realized the
presence of some people in her room, she started making
repetitive vocal sounds and moving her hands. This
behavior subsided as we left the room. She did not have
any involuntary movements. She did not demonstrate any
catatonic, hostile or violent behavior.

Her eyes were wide open and from her behavior it

appeared that she could see and hear us, as when one
loudly called her name, she stopped making vocal sounds
and hand movements for a while. She was unable to
maintain sustained eye-to eye contact but when the hand
was suddenly taken near her eyes, she was able to blink
well.

When an attempt was made to feed her by mouth,

she accepted a spoonful of water, some sugar and mashed
banana. She also licked the sugar and banana paste
sticking on her upper lips and swallowed it. Thus, at times
she could cooperate when fed.

2. Mood and affect :

It was difficult to assess her mood as she was unable

to communicate or express her feelings. She appeared to
calm down when she was touched or caressed gently. She
did not cry or laugh or expressed any other emotions
verbally or non-verbally during the examination period.
When not disturbed and observed quietly from a distance,
she did not appear to be in severe pain or misery. Only
when many people enter her room, she appears to get a bit
disturbed about it.
 15

3. Speech and thoughts :

She could make repeated vocal sounds but she could

not utter or repeat any comprehensible words or follow and
respond to any of the simple commands (such as “show me
your tongue”). The only way she expressed herself was by
making some sounds. She appeared to have minimal
language comprehension or expression.

4. Perception :

She did not appear to be having any perceptual

abnormality like hallucinations or illusions from her
behavior.

5. Orientation, memory and intellectual capacity :

Formal assessment of orientation in time, place and

person, memory of immediate, recent and remote events
and her intellectual capacity could not be carried out.

6. Insight :

As she does not appear to be fully aware of herself

and her surroundings, she is unlikely to have any insight
into her illness.

IV. Reports of Investigations

IVa. CT Scan Head (Plain)

This is contaminated by movement artefacts. It

shows generalized prominence of supratentorial sulci and
ventricles suggestive of generalized cerebral atrophy.
Brainstem and cerebellum seem normal. Ischemic foci are
seen in left centrum semi-ovale and right external capsule.
In addition a small left parieto-occipital cortical lesion is
also seen and is probably ischemic.
 16

IVb. EEG

The dominant feature is a moderately rhythmic alpha

frequency at 8-10 Hz and 20-70 microvolts which is
widely distributed and is equally prominent both anteriorly
and posteriorly. It is not responsive to eye-opening as seen
on the video. Beta at 18-25 Hz is also seen diffusely but
more prominently anteriorly. No focal or paroxysmal
abnormalities were noted

IVc. Blood

Reports of the hemoglobin, white cell count, liver

function tests, renal function tests, electrolytes, thyroid
function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels
are unremarkable. (Detailed report from KEM hospital
attached.)

V. Diagnostic impression

1) From the longitudinal case history and

examination it appears that Ms. Aruna Ramachandra
Shanbaug has developed non-progressive but irreversible
brain damage secondary to hypoxic-ischemic brain injury
consistent with the known effects of strangulation. Most
authorities consider a period exceeding 4 weeks in this
condition, especially when due to hypoxic-ischemic injury
as confirming irreversibility. In Ms. Aruna’s case, this
period has been as long as 37 years, making her perhaps
the longest survivor in this situation.

2) She meets most of the criteria for being in a

permanent vegetative state (PVS). PVS is defined as a
clinical condition of unawareness (Table 1) of self and
environment in which the patient breathes spontaneously,
has a stable circulation and shows cycles of eye closure
and opening which may simulate sleep and waking (Table
2). While she has evidence of intact auditory, visual,
somatic and motor primary neural pathways, no definitive
evidence for awareness of auditory, visual, somatic and
motor stimuli was observed during our examinations.
 17

VI. Prognosis

Her dementia has not progressed and has remained

stable for last many years and it is likely to remain same
over next many years. At present there is no treatment
available for the brain damage she has sustained.
VII. Appendix
VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS
STIMULUS
(Wade DT, Johnston C. British Med RESPONSE
Journal 1999; 319:841-844) DOMAIN
OBSERVED
AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements
Meaningful noise (rattled steel tumbler and spoon, filmNon-specific
songs head and body movements
of 1970s)
Spoken commands (“close your eyes”, “lift left hand “:Unablein to obey commands. No specific or reproducible
English, Marathi and Konkani) response
VISUAL AWARENESS Bright light to eyes Pupillary responses present
Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly
rattle) reproducible
Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right
Written command (English, Marathi: close your eyes) No response
SOMATIC AWARENESS Painful stimuli to limbs (light prick with
Withdrawal, maximal in left upper limb
sharp end of tendon hammer)
Painful stimuli to face Distress but no co-ordinated response to remove stimulus
Routine sensory stimuli during care (changing position Generalized
in bed non specific response presence but no coordinated
and feeding) attempt to assist in process
MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal
directed – lifting left hand to left side of face,
apparently to rub her left eye.
Responsive Non-specific undirected without any goal directed activities.

Conclusion:
From the above examination, she has evidence of intact auditory, visual, somatic and
motor primary neural pathways. However no definitive evidence for awareness of
auditory, visual, somatic and motor stimuli was observed during our examinations.

VIIb. Table 2. Application of Criteria for Vegetative State

(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):

Examination findings : whether she meets Criteria
S33-S38) Criteria (Yes /No / Probably)
Unaware of self and environment Yes, Unaware
No interaction with others Yes, no interaction
No sustained, reproducible or purposeful voluntary
Yes, no sustained, reproducible or purposeful
behavioural response to visual, auditory, tactilebehavioural
or response, but :
noxious stimuli 1. Resisted examination of fundus
2. Licked sugar off lips

No language comprehension or expression Yes, no comprehension

No blink to visual threat Blinks, but more consistent on left than right
 18

Present sleep wake cycles Yes (according to nurses)

Preserved autonomic and hypothalamic function
Yes
Preserved cranial nerve reflexes Yes
Bowel and bladder incontinence Yes

VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl
J Med 1994; 330: 1499-508
2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and
management. Brit Med J 1999; 319:841–4
3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and
diagnostic criteria. Neurology 2002;58:349–353
4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology
2010;75;S33”

8. On 18th February, 2011, we then passed the following

order :

“In the above case Dr. J.V. Divatia on

17.02.2011 handed over the report of the
team of three doctors whom we had appointed
by our order dated 24th January, 2011. He has
also handed over a CD in this connection.
Let the report as well as the CD form part
of the record.

On mentioning, the case has been

adjourned to be listed on 2 March, 2011 at
nd

the request of learned Attorney General of

India, Mr. T.R. Andhyarujina, learned Senior
Advocate, whom we have appointed as amicus
curiae in the case as well as Mr. Shekhar
Naphade, learned Senior Advocate for the
petitioner.

We request the doctors whom we had

appointed viz., Dr. J.V. Divatia, Dr. Roop
Gurshani and Dr. Nilesh Shah to appear
before us on 2nd March, 2011 at 10.30 A.M. in
the Court, since it is quite possible that
we may like to ask them questions about the
 19

report which they have submitted, and in

general about their views in connection with
euthanasia.

On perusal of the report of the

committee of doctors to us we have noted
that there are many technical terms which
have been used therein which a non-medical
man would find it difficult to understand.
We, therefore, request the doctors to submit
a supplementary report by the next date of
hearing (by e-mailing copy of the same two
days before the next date of hearing) in
which the meaning of these technical terms
in the report is also explained.

The Central Government is directed to

arrange for the air travel expenses of all
the three doctors as well as their stay in a
suitable accommodation at Delhi and also to
provide them necessary conveyance and other
facilities they require, so that they can
appear before us on 02.03.2011.

An honorarium may also be given to the

doctors, if they so desire, which may be
arranged mutually with the learned Attorney
General.

The Dean of King Edward Memorial

Hospital as well as Ms. Pinky Virani (who
claims to be the next friend of the
petitioner) are directed to intimate the
brother(s)/sister(s) or other close
relatives of the petitioner that the case
will be listed on 2nd March, 2011 in the
Supreme Court and they can put forward their
views before the Court, if they so desire.
Learned counsel for the petitioner and the
Registry of this Court shall communicate a
copy of this Order forthwith to the Dean,
KEM Hospital. The Dean, KEM Hospital is
requested to file an affidavit stating his
 20

views regarding the prayer in this writ

petition, and also the condition of the
petitioner.

Copy of this Order shall be given

forthwith to learned Attorney General of
India, Mr. Shekhar Naphade and Mr.
Andhyarujina, learned Senior Advocates.

Let the matter be listed as the first

item on 2nd March, 2011”.

9. On 2.3.2011, the matter was listed again before

us and we first saw the screening of the CD

submitted by the team of doctors along with their

report. We had arranged for the screening of the CD

in the Courtroom, so that all present in Court could

see the condition of Aruna Shanbaug. For doing so,

we have relied on the precedent of the Nuremburg

trials in which a screening was done in the

Courtroom of some of the Nazi atrocities during the

Second World War. We have heard learned counsel for

the parties in great detail. The three doctors

nominated by us are also present in Court. As

requested by us, the doctors team submitted a

supplementary report before us which states :

Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug

 21

Jointly prepared and signed by

1. Dr. J.V. Divatia

(Professor and Head, Department of Anesthesia, Critical Care
and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani

(Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah

(Professor and Head, Department of Psychiatry at Lokmanya Tilak
Municipal Corporation Medical College and General Hospital).

Mumbai
February 26, 2011

INDEX
Introduction 3
Terminology 4
Glossary of Technical terms 7
Opinion 11 3

Introduction

This document is a supplement to the Report of Examination of

Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011.

On perusal of the report, the Hon. Court observed that there

were many technical terms which a non-medical man would find it
difficult to understand, and requested us to submit a
supplementary report in which the meaning of these technical
terms in the report is also explained.

We have therefore prepared this Supplement to include a

glossary of technical terms used in the earlier Report, and
also to clarify some of the terminology related to brain
damage. Finally, we have given our opinion in the case of Aruna
Shanbaug.

Terminology

The words coma, brain death and vegetative state are often used
in common language to describe severe brain damage. However, in
medical terminology, these terms have specific meaning and
significance.

Brain death
 22

A state of prolonged irreversible cessation of all brain

activity, including lower brain stem function with the complete
absence of voluntary movements, responses to stimuli, brain
stem reflexes, and spontaneous respirations.

Explanation: This is the most severe form of brain damage. The

patient is unconscious, completely unresponsive, has no reflex
activity from centres in the brain, and has no breathing
efforts on his own. However the heart is beating. This patient
can only be maintained alive by advanced life support
(breathing machine or ventilator, drugs to maintain blood
pressure, etc). These patients can be legally declared dead
(‘brain dead’) to allow their organs to be taken for donation.

Aruna Shanbaug is clearly not brain dead.

Coma

Patients in coma have complete failure of the arousal system

with no spontaneous eye opening and are unable to be awakened
by application of vigorous sensory stimulation.

Explanation: These patients are unconscious. They cannot be

awakened even by application of a painful stimulus. They have
normal heart beat and breathing, and do not require advanced
life support to preserve life.

Aruna Shanbaug is clearly not in Coma.

Vegetative State (VS)

The complete absence of behavioral evidence for self or

environmental awareness. There is preserved capacity for
spontaneous or stimulus-induced arousal, evidenced by sleep–
wake cycles. .i.e. patients are awake, but have no awareness.

Explanation: Patients appear awake. They have normal heart beat

and breathing, and do not require advanced life support to
preserve life. They cannot produce a purposeful, co-ordinated,
voluntary response in a sustained manner, although they may
have primitive reflexive responses to light, sound, touch or
pain. They cannot understand, communicate, speak, or have
emotions. They are unaware of self and environment and have no
interaction with others. They cannot voluntarily control
passing of urine or stools. They sleep and awaken. As the
centres in the brain controlling the heart and breathing are
intact, there is no threat to life, and patients can survive
for many years with expert nursing care. The following
behaviours may be seen in the vegetative state :
 23

Sleep-wake cycles with eyes closed, then open

Patient breathes on her own
Spontaneous blinking and roving eye movements
Produce sounds but no words
Brief, unsustained visual pursuit (following an object with her
eyes)
Grimacing to pain, changing facial expressions
Yawning; chewing jaw movements
Swallowing of her own spit
Nonpurposeful limb movements; arching of back
Reflex withdrawal from painful stimuli
Brief movements of head or eyes toward sound or movement
without apparent localization or fixation
Startles with a loud sound

Almost all of these features consistent with the diagnosis of

permanent vegetative state were present during the medical
examination of Aruna Shanbaug.

Minimally Conscious State

Some patients with severe alteration in consciousness have

neurologic findings that do not meet criteria for VS. These
patients demonstrate some behavioral evidence of conscious
awareness but remain unable to reproduce this behavior
consistently. This condition is referred to here as the
minimally conscious state (MCS). MCS is distinguished from VS
by the partial preservation of conscious awareness.

To make the diagnosis of MCS, limited but clearly discernible

evidence of self or environmental awareness must be
demonstrated on a reproducible or sustained basis by one or
more of the following behaviors:

• Following simple commands.

• Gestural or verbal yes/no responses (regardless of accuracy).
• Intelligible sounds
• Purposeful behavior, including movements or emotional
behaviors (smiling, crying) that occur in relation to relevant
environmental stimuli and are not due to reflexive activity.
Some examples of qualifying purposeful behavior include:

– appropriate smiling or crying in response to the linguistic

 24

or visual content of emotional but not to neutral topics or

stimuli

– vocalizations or gestures that occur in direct response to

the linguistic content of questions

– reaching for objects that demonstrates a clear relationship

between object location and direction of reach

– touching or holding objects in a manner that accommodates the

size and shape of the object

– pursuit eye movement or sustained fixation that occurs in

direct response to moving or salient stimuli

None of the above behaviours suggestive of a Minimally

Conscious State were observed during the examination of Aruna
Shanbaug.

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT

(In Alphabetical order) Term in text Meaning
Affect Feeling conveyed though
expressions and behavior
Afebrile No fever
Auditory Related to hearing
Bedsore A painful wound on the body
caused by having to lie in bed
for a long time
Bilaterally On both sides (right and left)
Bruise An injury or mark where the
skin has not been broken but
is darker in colour, often as
a result of being hit by
something
Catatonic Describes someone who is stiff
and not moving or reacting, as
if dead
Cerebral atrophy Shrinking of the globe
(cortex) of the brain
Clubbing Bulging or prominence of the
nailbed, making base of the
nails look thick. This is
often due to longstanding
infection inside the lungs.
Cognitive Related to ability to
understand and process
information in the brain
Conjugate Synchronised movement (of the
eyeball)
 25

Conscious Awake with eyes open. By

itself the term conscious does
not convey any information
about awareness of self and
surroundings, or the ability
to understand, communicate,
have emotions, etc.
Contractures Muscles or tendons that have
become shortened and taut over
a period of time. This causes
deformity and restriction of
movements.
CT Scan A specialized X-ray test where
images of the brain (or other
part of the body) are obtained
in cross-section at different
levels. This allows clear
visualization of different
parts of the brain
Cyanosis Bluish discoloration of the nails, lips or skin.
It may be due to low levels of oxygen in the
blood
Deep tendon reflexes Reflex response of the fleshy part of certain
muscles when its tendon is hit lightly with an
examination hammer
Dementia Disorder in which there is a cognitive defect,
i.e. the patient is unable to understand and
process information in the brain
Electroencephalography, (EEG) Recording of the electrical activity of the
brain
Febrile illness Illness with fever
Fracture A crack or a break in bones
Fundi Plural of fundus. Fundus of the eye is the
interior surface of the eye, opposite the lens.
It is examined with an instrument called the
ophthalmoscope
Gag reflex Movement of the palate in response to
insertion of a tongue depressor in the throat
Hallucinations Perception in the absence of stimuli. (e.g.
hearing voices which are not there or which
are inaudible to others)
Hemifields Right or left part of the field of vision
Hypoxic Related to reduced oxygen levels in the
blood
Icterus Yellowish discoloration of the skin and
eyeballs. This is commonly known as
jaundice, and may be caused by liver disease
Illusions Misperception of stimuli (seeing a rope as a
snake)
Immediate memory Memory of events which have occurred just
a few minutes ago
 26

Insight Person’s understanding of his or her own

illness
Intellectual capacity Ability to solve problems. The ability to
learn, understand and make judgments or
have opinions that are based on reason
Involuntary movements Automatic movements over which patient
has no control
Ischemic Related to restriction or cutting off of the
blood flow to any part of the body
Malnourishment Weak and in bad health because of having
too little food or too little of the types of
food necessary for good health
Menace reflex Blinking in response to hand movements in
front of eyes
Mood The way one feels at a particular time
Motor Related to movement
Movement artefacts Disturbance in the image seen in the CT scan
due to patient movement
Oral feed Food given through mouth
Orientation Awareness about the time, place and person
Pallor Pale appearance of the skin. Usually this is
due to a low red blood cell count or low
haemoglobin level in the blood.
Passive movement Movement of a limb or part of the body done
by the doctor without any effort by the
patient
Perception Sensory experiences (such as seeing, hearing
etc.)
Perceptual abnormalities Abnormal sensory experiences, e.g, seeing
things that do not exist, hearing sounds when
there are none
Plantars Reflex response of the toes when a sharp
painful stimulus is applied to the sole of the
foot. The normal response is curling
downwards of the toes.
Plantars were withdrawal/extensor When a painful stimulus was applied to the
sole of the foot the toes spread out and there
was reflex movement of the leg (withdrawal)
or upward curling of the great toe and other
toes (extensor). This is an abnormal response
indicating damage in the pathway in the
brain or to the area in the brain controlling
function of the legs.
Primary neural pathways Course of the nerves from a part of the body
to the area in the brain responsible for the
function of that part
Pupillary reaction The pupillary light reflex controls the
diameter of the pupil, in response to the
intensity of light. Greater intensity light
 27

causes the pupil to become smaller (allowing

less light in), whereas

Opinion

In our view, the issues in this case (and other similar cases) are:

1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal

of life sustaining therapies (many authorities would include placement of an artificial feeding
tube as a life sustaining intervention) be permissible or ‘not unlawful’ ?
2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of
futile care or a PVS, should his / her wishes be respected when the situation arises?
3. In case a person has not previously expressed such a wish, if his family or next of kin makes
a request to withhold or withdraw futile life-sustaining treatments, should their wishes be
respected?
4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37
years by the staff of KEM Hospital. Who should take decisions on her behalf?

Questions such as these come up at times in the course of medical practice. We realize that
answers to these questions are difficult, and involve several ethical, legal and social issues. Our
opinion is based on medical facts and on the principles of medical ethics. We hope that the
Honourable Court will provide guidance and clarity in this matter.

Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where the informed patient has a right to
choose the manner of his treatment. To be autonomous the patient should be competent to
make decisions and choices. In the event that he is incompetent to make choices, his wishes
expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his
behalf ('substituted judgment') are to be respected.

The surrogate is expected to represent what the patient may have decided had he / she been
competent, or to act in the patient’s best interest. It is expected that a surrogate acting in the
patient’s best interest follows a course of action because it is best for the patient, and is not
influenced by personal convictions, motives or other considerations.

2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the
patient’s best interest means following a course of action that is best for the patient, and is not
influenced by personal convictions, motives or other considerations. In some cases, the doctor’s
expanded goals may include allowing the natural dying process (neither hastening nor delaying
death, but ‘letting nature take its course’), thus avoiding or reducing the sufferings of the
patient and his family, and providing emotional support. This is not to be confused with
euthanasia, which involves the doctor's deliberate and intentional act through administering a
lethal injection to end the life of the patient.
 28

In the present case under consideration

1. We have no indication of Aruna Shanbaug’s views or wishes with respect to life-sustaining

treatments for a permanent vegetative state.
2. Any decision regarding her treatment will have to be taken by a surrogate
3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by
her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is
an appropriate surrogate.
4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that life sustaining treatments should continue, their
decision should be respected.
5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in
the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is
the appropriate course of action, they should be allowed to do so, and their actions should not
be considered unlawful.

10. To complete the narration of facts and before

we come to the legal issues involved, we may mention

that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has

issued a statement on 24.1.2011 opposing euthanasia

for the petitioner :-

“She means a lot to KEM hospital. She

is on liquid diet and loves listening to
music. We have never subjected her to
intravenous food or fed her via a tube. All
these years, she hasn’t had even one
bedsore. When those looking after her do not
have a problem, I don’t understand why a
third party who has nothing to do with her
[Pinky Virani who has moved the apex court
to seek euthanasia for Shanbaug] needs to
worry,” added Dr Oak, who, when he took over
as dean of KEM hospital in 2008, visited her
 29

first to take her blessings. “I call on her

whenever I get time. I am there whenever she
has dysentery or any another problem. She is
very much alive and we have faith in the
judiciary,” said Dr Oak.”

11. Dr. Sanjay Oak has subsequently filed an

affidavit in this Court which states :

“a) Smt. Aruna Ramchandra Shanbaug has

been admitted in a single room in Ward No.4
which is a ward of general internal medicine
patients and she has been there for last 37
years. She is looked after entirely by
doctors, nurses and para-medical staff of
KEM Hospital. She has been our staff nurse
and the unfortunate tragic incidence has
happened with her in KEM Hospital and I must
put on record that the entire medical,
administrative, nursing and para-medical
staff is extremely attached to her and
consider her as one of us. Her relatives
and a gentleman (her fiancee) used to visit
her in the initial period of her illness but
subsequently she has been left to the care
of KEM staff. I visit her frequently and my
last visit to her was on 22nd February, 2011.
I give my observations as a Clinician about
Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that

Smt. Aruna Shanbaug is an appropriate case
for Coma. It appears that for a crucial,
critical period her brain was deprived of
Oxygen supply and this has resulted in her
present state similar to that of Cerebral
Palsy in the newborn child. It is a
condition where brain looses it’s co-
ordinatory, sensory as well as motor
functions and this includes loss of speech
 30

and perception. This has resulted into a

state which in a layman’s words “Aruna lives
in her own world for last 37 years”. She is
lying in a bed in a single room for 33
years. She has not been able to stand or
walk, nor have we attempted to do that of
late because we fear that she is fragile and
would break her bones if she falls. Her
extremities and fingers have developed
contractures and subsequent to non-use;
there is wasting of her body muscles. Her
eyes are open and she blinks frequently;
however, these movements are not pertaining
to a specific purpose or as a response to a
question. At times she is quiet and at
times she shouts or shrieks. However, I
must say that her shouts and shrieks are
completely oblivious to anybody’s presence
in her room. It is not true that she shouts
after seeing a man. I do not think Aruna
can distinguish between a man and a woman,
nor can she even distinguish between
ordinate and inordinate object. We play
devotional songs rendered by Sadguru
Wamanrao Pai continuously in her room and
she lies down on her bed listening to them.
She expresses her displeasure by grimaces
and shouts if the tape recorder is switched
off. All these years she was never fed by
tube and whenever a nurse used to take food
to her lips, she used to swallow it. It is
only since September 2010 she developed
Malaria and her oral intake dropped. In
order to take care of her calorie make need,
nurses cadre resorted to naso-gastric tube
feed and now she is used to NG feeding.
However, if small morsels are held near her
lips, Aruna accepts them gladly. It appears
that she relishes fish and occasionally
smiles when she is given non-vegetarian
food. However, I am honest in admitting
that her smiles are not purposeful and it
would be improper to interpret them as a
 31

signal of gratification. I must put on

record that in the world history of medicine
there would not be another single case where
such a person is cared and nurtured in bed
for 33 long years and has not developed a
single bed sore. This speaks of volumes of
excellence of nursing care that KEM Nursing
staff has given to her.

c) This care is given not as a part of

duty but as a part of feeling of oneness.
With every new batch of entrants, the
student nurses are introduced to her and
they are told that she was one of us and she
continues to be one of us and then they
whole-heartedly take care of Aruna. In my
opinion, this one is finest example of love,
professionalism, dedication and commitment
to one of our professional colleagues who is
ailing and cannot support herself. Not
once, in this long sojourn of 33 years,
anybody has thought of putting an end to her
so called vegetative existence. There have
been several Deans and Doctors of KEM
Hospital who have cared her in succession.
Right from illustrious Dr. C.K. Deshpande in
whose tenure the incidence happened in 1973,
Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai,
Dr. R.J. Shirahatti, Dr. Smt. N.A.
Kshirsagar, Dr. M.E. Yeolekar and now myself
Dr. Sanjay N. Oak, all of us have visited
her room time and again and have cared for
her and seen her through her ups and downs.
The very idea of withholding food or putting
her to sleep by active medication (mercy
killing) is extremely difficult for anybody
working in Seth GSMC & KEM Hospital to
accept and I sincerely make a plea to the
Learned Counsel and Hon’ble Judges of
Supreme Court of India that this should not
be allowed. Aruna has probably crossed 60
years of life and would one day meet her
 32

natural end. The Doctors, Nurses and staff

of KEM, are determined to take care of her
till her last breath by natural process.
d) I do not think it is proper on my
part to make a comment on the entire case.
However, as a clinical surgeon for last 3
decades and as an administrator of the
hospitals for last 7 years and as a student
of legal system of India (as I hold
“Bachelor of Law” degree from Mumbai
University), I feel that entire society has
not matured enough to accept the execution
of an Act of Euthanasia or Mercy Killing. I
fear that this may get misused and our
monitoring and deterring mechanisms may fail
to prevent those unfortunate incidences. To
me any mature society is best judged by it’s
capacity and commitment to take care of it’s
“invalid” ones. They are the children of
Lesser God and in fact, developing nation as
we are, we should move in a positive manner
of taking care of several unfortunate ones
who have deficiencies, disabilities and
deformities.”

12. The Hospital staff of KEM Hospital, Mumbai e.g.

the doctors, sister-in-charge ward no. 4 KEM

hospital Lenny Cornielo, Assistant Matron Urmila

Chauhan and others have also issued statements that

they were looking after Aruna Shanbaug and want her

to live. “Aruna is the bond that unites us”, the KEM

Hospital staff has stated. One retired nurse, Tidi

Makwana, who used to take care of Aruna while in

 33

service, has even offered to continue to take care

of her without any salary and without charging any

traveling expenses.

13. We have referred to these statements because it

is evident that the KEM Hospital staff right from

the Dean, including the present Dean Dr. Sanjay Oak

and down to the staff nurses and para-medical staff

have been looking after Aruna for 38 years day and

night. What they have done is simply marvelous.

They feed Aruna, wash her, bathe her, cut her nails,

and generally take care of her, and they have been

doing this not on a few occasions but day and night,

year after year. The whole country must learn the

meaning of dedication and sacrifice from the KEM

hospital staff. In 38 years Aruna has not developed

one bed sore.

14. It is thus obvious that the KEM hospital staff

has developed an emotional bonding and attachment to

Aruna Shanbaug, and in a sense they are her real

family today. Ms. Pinki Virani who claims to be the

 34

next friend of Aruna Shanbaug and has filed this

petition on her behalf is not a relative of Aruna

Shanbaug nor can she claim to have such close

emotional bonding with her as the KEM hospital

staff. Hence, we are treating the KEM hospital

staff as the next friend of Aruna Shanbaug and we

decline to recognize Ms. Pinki Virani as her next

friend. No doubt Ms. Pinki Virani has written a

book about Aruna Shanbaug and has visited her a few

times, and we have great respect for her for the

social causes she has espoused, but she cannot claim

to have the extent of attachment or bonding with

Aruna which the KEM hospital staff, which has been

looking after her for years, claims to have.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for

the petitioner has relied on the decision of this

Court in Vikram Deo Singh Tomar vs. State of Bihar

1988 (Supp) SCC 734 (vide para 2) where it was

observed by this Court :

 35

“We live in an age when this Court has

demonstrated, while interpreting Article 21
of the Constitution, that every person is
entitled to a quality of life consistent
with his human personality. The right to
live with human dignity is the fundamental
right of every Indian citizen”.

16. He has also relied on the decision of this Court

in P. Rathinam vs. Union of India and another (1994)

3 SCC 394 in which a two-Judge bench of this Court

quoted with approval a passage from an article by

Dr. M. Indira and Dr. Alka Dhal in which it was

mentioned :
“Life is not mere living but living in
health. Health is not the absence of
illness but a glowing vitality”.

17. The decision in Rathinam’s case (supra) was,

however, overruled by a Constitution Bench decision

of this Court in Gian Kaur vs. State of Punjab

(1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention

to paras 24 & 25 of the aforesaid decision in which

 36

it was observed :

“(24) Protagonism of euthanasia on the view that existence in

persistent vegetative state (PVS) is not a benefit to the patient of
a terminal illness being unrelated to the principle of 'sanctity of
life' or the right to live with dignity' is of no assistance to
determine the scope of Article 21 for deciding whether the
guarantee of right to life' therein includes the right to die'. The
right to life' including the right to live with human dignity would
mean the existence of such a right upto the end of natural life.
This also includes the right to a dignified life upto the point of
death including a dignified procedure of death. In other words,
this may include the right of a dying man to also die with dignity
when his life is ebbing out. But the 'right to die' with dignity at
the end of life is not to be confused or equated with the right to
die' an unnatural death curtailing the natural span of life.

(25) A question may arise, in the context of a dying man, who

is, terminally ill or in a persistent vegetative state that he may be
permitted to terminate it by a premature extinction of his life in
those circumstances. This category of cases may fall within the
ambit of the 'right to die' with dignity as a part of right to live
with dignity, when death due to termination of natural life is
certain and imminent and the process of natural death has
commenced. These are not cases of extinguishing life but only of
accelerating conclusion of the process of natural death which has
already commenced. The debate even in such cases to permit
physician assisted termination of life is inconclusive. It is
sufficient to reiterate that the argument to support the view of
permitting termination of life in such cases to reduce the period
of suffering during the process of certain natural death is not
available to interpret Article 21 to include therein the right to
curtail the natural span of life”.
 37

He has particularly emphasized paragraph 25 of the

said judgment in support of his submission that

Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and

25 in Gian Kaur’s case (supra) and we are of the

opinion that all that has been said therein is that

the view in Rathinam’s case (supra) that the right

to life includes the right to die is not correct.

We cannot construe Gian Kaur’s case (supra) to mean

anything beyond that. In fact, it has been

specifically mentioned in paragraph 25 of the

aforesaid decision that “the debate even in such

cases to permit physician assisted termination of

life is inconclusive”. Thus it is obvious that no

final view was expressed in the decision in Gian

Kaur’s case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted

that Ms. Pinky Virani is the next friend of Aruna as

 38

she has written a book on her life called ‘Aruna’s

story’ and has been following Aruna’s case from 1980

and has done whatever possible and within her means

to help Aruna. Mr. Naphade has also invited our

attention to the report of the Law Commission of

India, 2006 on ‘Medical Treatment to Terminally Ill

Patients’. We have perused the said report

carefully.

21. Learned Attorney General appearing for the Union

of India after inviting our attention to the

relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to

live in her present state.

(ii) The state that Aruna Ramchandra Shanbaug is

presently in does not justify terminating
her life by withdrawing
hydration/food/medical support.

(iii) The aforesaid acts or series of acts

and/or such omissions will be cruel, inhuman
and intolerable.

(iv) Withdrawing/withholding of
hydration/food/medical support to a patient
is unknown to Indian law and is contrary to
law.

(v) In case hydration or food is

 39

withdrawn/withheld from Aruna Ramchandra

Shanbaug, the efforts which have been put in
by batches after batches of nurses of KEM
Hospital for the last 37 years will be
undermined.

(vi) Besides causing a deep sense of resentment

in the nursing staff as well as other well
wishers of Aruna Ramchandra Shanbaug in KEM
Hospital including the management, such
acts/omissions will lead to disheartenment
in them and large scale disillusionment.

(vii) In any event, these acts/omissions

cannot be permitted at the instance of Ms.
Pinky Virani who desires to be the next
friend of Aruna Ramchandra Shanbaug without
any locus.

Learned Attorney General stated that the report of

the Law Commission of India on euthanasia has not

been accepted by the Government of India. He

further submitted that Indian society is emotional

and care-oriented. We do not send our parents to

old age homes, as it happens in the West. He stated

that there was a great danger in permitting

euthanasia that the relatives of a person may

conspire with doctors and get him killed to inherit

his property. He further submitted that tomorrow

there may be a cure to a medical state perceived as

 40

incurable today.

22. Mr. T. R. Andhyarujina, learned senior counsel

whom we had appointed as Amicus Curiae, in his

erudite submissions explained to us the law on the

point. He submitted that in general in common law

it is the right of every individual to have the

control of his own person free from all restraints

or interferences of others. Every human being of

adult years and sound mind has a right to determine

what shall be done with his own body. In the case

of medical treatment, for example, a surgeon who

performs an operation without the patient’s consent

commits assault or battery.

23. It follows as a corollary that the patient

possesses the right not to consent i.e. to refuse

treatment. (In the United States this right is

reinforced by a Constitutional right of privacy).

This is known as the principle of self-determination

or informed consent.
 41

24. Mr. Andhyarujina submitted that the principle of

self-determination applies when a patient of sound

mind requires that life support should be

discontinued. The same principle applies where a

patient’s consent has been expressed at an earlier

date before he became unconscious or otherwise

incapable of communicating it as by a ‘living will’

or by giving written authority to doctors in

anticipation of his incompetent situation.

Mr. Andhyarujina differed from the view of the

learned Attorney General in that while the latter

opposed even passive euthanasia, Mr. Andhyarujina

was in favour of passive euthanasia provided the

decision to discontinue life support was taken by

responsible medical practitioners.

25. If the doctor acts on such consent there is no

question of the patient committing suicide or of the

doctor having aided or abetted him in doing so. It

is simply that the patient, as he is entitled to do,

declines to consent to treatment which might or

would have the effect of prolonging his life and the

 42

doctor has in accordance with his duties complied

with the patient’s wishes.

26. The troublesome question is what happens when

the patient is in no condition to be able to say

whether or not he consents to discontinuance of the

treatment and has also given no prior indication of

his wishes with regard to it as in the case of

Aruna. In such a situation the patient being

incompetent to express his self-determination the

approach adopted in some of the American cases is of

“substituted judgment” or the judgment of a

surrogate. This involves a detailed inquiry into

the patient’s views and preferences. The surrogate

decision maker has to gather from material facts as

far as possible the decision which the incompetent

patient would have made if he was competent.

However, such a test is not favoured in English law

in relation to incompetent adults.

27. Absent any indication from a patient who is

incompetent the test which is adopted by Courts is

 43

what is in the best interest of the patient whose

life is artificially prolonged by such life support.

This is not a question whether it is in the best

interest of the patient that he should die. The

question is whether it is in the best interest of

the patient that his life should be prolonged by the

continuance of the life support treatment. This

opinion must be formed by a responsible and

competent body of medical persons in charge of the

patient.

28. The withdrawal of life support by the doctors is

in law considered as an omission and not a positive

step to terminate the life. The latter would be

euthanasia, a criminal offence under the present law

in UK, USA and India.

29. In such a situation, generally the wishes of the

patient’s immediate family will be given due weight,

though their views cannot be determinative of the

carrying on of treatment as they cannot dictate to

responsible and competent doctors what is in the

 44

best interest of the patient. However, experience

shows that in most cases the opinions of the doctors

and the immediate relatives coincide.

30. Whilst this Court has held that there is no

right to die (suicide) under Article 21 of the

Constitution and attempt to suicide is a crime vide

Section 309 IPC, the Court has held that the right

to life includes the right to live with human

dignity, and in the case of a dying person who is

terminally ill or in a permanent vegetative state he

may be permitted to terminate it by a premature

extinction of his life in these circumstances and it

is not a crime vide Gian Kaur’s case (supra).

31. Mr. Andhyarujina submitted that the decision to

withdraw the life support is taken in the best

interests of the patient by a body of medical

persons. It is not the function of the Court to

evaluate the situation and form an opinion on its

own. In England for historical reasons the parens

patriae jurisdiction over adult mentally

 45

incompetent persons was abolished by statute and the

Court has no power now to give its consent. In this

situation, the Court only gives a declaration that

the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes

provision relating to persons who lack capacity and

to determine what is in their best interests and the

power to make declaration by a special Court of

Protection as to the lawfulness of any act done in

relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal

of nutrition by stopping essential food by means of

nasogastric tube is not the same as unplugging a

ventilator which artificially breathes air into the

lungs of a patient incapable of breathing resulting

in instant death. In case of discontinuance of

artificial feeding the patient will as a result

starve to death with all the sufferings and pain and

distress associated with such starving. This is a

very relevant consideration in a PVS patient like

 46

Aruna who is not totally unconscious and has sensory

conditions of pain etc. unlike Antony Bland in

Airedale vs. Director MHD (1993) 2 WLR 316 who was

totally unconscious. Would the doctor be able to

avoid such pain or distress by use of sedatives

etc.? In such a condition would it not be more

appropriate to continue with the nasogastric feeding

but not take any other active steps to combat any

other illness which she may contract and which may

lead to her death?

34. Mr. Andhyarujina further submitted that in a

situation like that of Aruna, it is also necessary

to recognize the deep agony of nurses of the

hospital who have with deep care looked after her

for over 37 years and who may not appreciate the

withdrawal of the life support. It may be necessary

that their views should be considered by the Court

in some appropriate way.

35. Mr. Andhyarujina, in the course of his

submission stated that some Courts in USA have

 47

observed that the view of a surrogate may be taken

to be the view of the incompetent patient for

deciding whether to withdraw the life support,

though the House of Lords in Airedale’s case has not

accepted this. He submitted that relatives of Aruna

do not seem to have cared for her and it is only the

nursing staff and medical attendants of KEM

hospital who have looked after her for 37 years. He

has also submitted that though the humanistic

intention of Ms. Pinky Virani cannot be doubted, it

is the opinion of the attending doctors and nursing

staff which is more relevant in this case as they

have looked after her for so many years.

36. Mr. Pallav Shishodia, learned senior counsel for

the Dean, KEM hospital, Mumbai submitted that Ms.

Pinky Virani has no locus standi in the matter and

it is only the KEM hospital staff which could have

filed such a writ petition.

37. We have also heard learned counsel for the State

of Maharashtra, Mr. Chinmoy Khaldkar and other

 48

assisting counsel whose names have been mentioned in

this judgment. They have been of great assistance

to us as we are deciding a very sensitive and

delicate issue which while requiring a humanistic

approach, also requires great case and caution to

prevent misuse. We were informed that not only the

learned counsel who argued the case before us, but

also the assistants (whose names have been mentioned

in the judgment) have done research on the subject

for several weeks, and indeed this has made our task

easier in deciding this case. They therefore

deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to the legal issues in this case, it

may be noted that euthanasia is of two types :

active and passive. Active euthanasia entails the

use of lethal substances or forces to kill a person

e.g. a lethal injection given to a person with

terminal cancer who is in terrible agony. Passive

euthanasia entails withholding of medical treatment

 49

for continuance of life, e.g. withholding of

antibiotics where without giving it a patient is

likely to die, or removing the heart lung machine,

from a patient in coma.

39. The general legal position all over the world

seems to be 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.

40. A further categorization of euthanasia is

between voluntary euthanasia and non voluntary

euthanasia. Voluntary euthanasia is where the

consent is taken from the patient, whereas non

voluntary euthanasia is where the consent is

unavailable e.g. when the patient is in coma, or is

otherwise unable to give consent. While there is no

legal difficulty in the case of the former, the

latter poses several problems, which we shall

address.
 50

ACTIVE EUTHANASIA

41. As already stated above active euthanasia is a

crime all over the world except where permitted by

legislation. In India active euthanasia is illegal

and a crime under section 302 or at least section

304 IPC. Physician assisted suicide is a crime

under section 306 IPC (abetment to suicide).

42. Active euthanasia is taking specific steps to

cause the patient's death, such as injecting the

patient with some lethal substance, e.g. sodium

pentothal which causes a person deep sleep in a few

seconds, and the person instantaneously and

painlessly dies in this deep sleep.

43. A distinction is sometimes drawn between

euthanasia and physician assisted dying, the

difference being in who administers the lethal

medication. In euthanasia, a physician or third

party administers it, while in physician assisted

 51

suicide it is the patient himself who does it,

though on the advice of the doctor. In many

countries/States the latter is legal while the

former is not.

44. The difference between "active" and "passive"

euthanasia is that in active euthanasia, something

is done to end the patient's life’ while in passive

euthanasia, something is not done that would have

preserved the patient's life.

45. An important idea behind this distinction is

that in "passive euthanasia" the doctors are not

actively killing anyone; they are simply not saving

him. While we usually applaud someone who saves

another person's life, we do not normally condemn

someone for failing to do so. If one rushes into a

burning building and carries someone out to safety,

he will probably be called a hero. But if one sees a

burning building and people screaming for help, and

he stands on the sidelines -- whether out of fear

for his own safety, or the belief that an

 52

inexperienced and ill-equipped person like himself

would only get in the way of the professional

firefighters, or whatever -- if one does nothing,

few would judge him for his inaction. One would

surely not be prosecuted for homicide. (At least,

not unless one started the fire in the first place.)

46. Thus, proponents of euthanasia say that while we

can debate whether active euthanasia should be

legal, there can be no debate about passive

euthanasia: You cannot prosecute someone for failing

to save a life. Even if you think it would be good

for people to do X, you cannot make it illegal for

people to not do X, or everyone in the country who

did not do X today would have to be arrested.

47. Some persons are of the view that the

distinction is not valid. They give the example of

the old joke about the child who says to his

teacher, "Do you think it's right to punish someone

for something that he didn't do?" "Why, of course

not," the teacher replies. "Good," the child says,

 53

"because I didn't do my homework."

48. In fact we have many laws that penalize people

for what they did not do. A person cannot simply

decide not to pay his income taxes, or not bother to

send his/her children to school (where the law

requires sending them), or not to obey a policeman's

order to put down one’s gun.

49. However, we are of the opinion that the

distinction is valid, as has been explained in some

details by Lord Goff in Airedale’s case (infra)

which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA

OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with

a case related to passive euthanasia, it would be of

some interest to note the legislations in certain

countries permitting active euthanasia. These are

given below.

Netherlands:
 54

Euthanasia in the Netherlands is regulated by

the "Termination of Life on Request and Assisted

Suicide (Review Procedures) Act", 2002. It

states that euthanasia and physician-assisted

suicide are not punishable if the attending

physician acts in accordance with the criteria

of due care. These criteria concern the

patient's request, the patient's suffering

(unbearable and hopeless), the information

provided to the patient, the presence of

reasonable alternatives, consultation of another

physician and the applied method of ending life.

To demonstrate their compliance, the Act

requires physicians to report euthanasia to a

review committee.

The legal debate concerning euthanasia in the

Netherlands took off with the "Postma case" in

1973, concerning a physician who had facilitated

the death of her mother following repeated

explicit requests for euthanasia. While the

physician was convicted, the court's judgment

set out criteria when a doctor would not be

 55

required to keep a patient alive contrary to his

will. This set of criteria was formalized in the

course of a number of court cases during the

1980s.

Termination of Life on Request and Assisted

Suicide (Review Procedures) Act took effect on

April 1, 2002. It legalizes euthanasia and

physician assisted suicide in very specific

cases, under very specific circumstances. The

law was proposed by Els Borst, the minister of

Health. The procedures codified in the law had

been a convention of the Dutch medical community

for over twenty years.

The law allows a medical review board to suspend

prosecution of doctors who performed euthanasia

when each of the following conditions is

fulfilled:

• the patient's suffering is unbearable with no

prospect of improvement

• the patient's request for euthanasia must be

voluntary and persist over time (the request

 56

cannot be granted when under the influence of

others, psychological illness, or drugs)

• the patient must be fully aware of his/her

condition, prospects and options

• there must be consultation with at least one

other independent doctor who needs to confirm

the conditions mentioned above

• the death must be carried out in a medically

appropriate fashion by the doctor or patient, in

which case the doctor must be present

• the patient is at least 12 years old (patients

between 12 and 16 years of age require the

consent of their parents)

The doctor must also report the cause of death

to the municipal coroner in accordance with the

relevant provisions of the Burial and Cremation

Act. A regional review committee assesses

whether a case of termination of life on request

or assisted suicide complies with the due care

criteria. Depending on its findings, the case

will either be closed or, if the conditions are

 57

not met, brought to the attention of the Public

Prosecutor. Finally, the legislation offers an

explicit recognition of the validity of a

written declaration of the will of the patient

regarding euthanasia (a "euthanasia directive").

Such declarations can be used when a patient is

in a coma or otherwise unable to state if they

wish to be euthanized.

Euthanasia remains a criminal offense in cases

not meeting the law's specific conditions, with

the exception of several situations that are not

subject to the restrictions of the law at all,

because they are considered normal medical

practice. These are :

• stopping or not starting a medically useless

(futile) treatment

• stopping or not starting a treatment at the

patient's request

• speeding up death as a side-effect of treatment

necessary for alleviating serious suffering

Euthanasia of children under the age of 12

 58

remains technically illegal; however, Dr. Eduard

Verhagen has documented several cases and,

together with colleagues and prosecutors, has

developed a protocol to be followed in those

cases. Prosecutors will refrain from pressing

charges if this Groningen Protocol is followed.

Switzerland:

Switzerland has an unusual position on assisted

suicide: it is legally permitted and can be

performed by non-physicians. However,

euthanasia is illegal, the difference between

assisted suicide and euthanasia being that while

in the former the patient administers the lethal

injection himself, in the latter a doctor or

some other person administers it.

Article 115 of the Swiss penal code, which came

into effect in 1942 (having been approved in

1937), considers assisting suicide a crime if,

and only if, the motive is selfish. The code

does not give physicians a special status in

 59

assisting suicide; although, they are most

likely to have access to suitable drugs.

Ethical guidelines have cautioned physicians

against prescribing deadly drugs.

Switzerland seems to be the only country in

which the law limits the circumstances in which

assisted suicide is a crime, thereby

decriminalising it in other cases, without

requiring the involvement of a physician.

Consequently, non-physicians have participated

in assisted suicide. However, legally, active

euthanasia e.g. administering a lethal injection

by a doctor or some other person to a patient is

illegal in Switzerland (unlike in Holland where

it is legal under certain conditions).

The Swiss law is unique because (1) the

recipient need not be a Swiss national, and (2)

a physician need not be involved. Many persons

from other countries, especially Germany, go to

Switzerland to undergo euthanasia.

 60

Belgium:

Belgium became the second country in Europe

after Netherlands to legalize the practice of

euthanasia in September 2002.

The Belgian law sets out conditions under which

suicide can be practised without giving doctors

a licence to kill.

Patients wishing to end their own lives must be

conscious when the demand is made and repeat

their request for euthanasia. They have to be

under "constant and unbearable physical or

psychological pain" resulting from an accident

or incurable illness.

The law gives patients the right to receive

ongoing treatment with painkillers -- the

authorities have to pay to ensure that poor or

isolated patients do not ask to die because they

do not have money for such treatment.

Unlike the Dutch legislation, minors cannot seek

assistance to die.
 61

In the case of someone who is not in the

terminal stages of illness, a third medical

opinion must be sought.

Every mercy killing case will have to be filed

at a special commission to decide if the doctors

in charge are following the regulations.

U.K., Spain, Austria, Italy, Germany, France,

etc.

In none of these countries is euthanasia or

physician assisted death legal. In January 2011

the French Senate defeated by a 170-142 vote a

bill seeking to legalize euthanasia. In

England, in May 2006 a bill allowing physician

assisted suicide, was blocked, and never became

law.

United States of America:

Active Euthanasia is illegal in all states in

U.S.A., but physician assisted dying is legal in

 62

the states of Oregon, Washington and Montana.

As already pointed out above, the difference

between euthanasia and physician assisted

suicide lies in who administers the lethal

medication. In the former, the physician or

someone else administers it, while in the latter

the patient himself does so, though on the

advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize

physician assisted death.

The Oregon legislature enacted the Oregon Death

with Dignity Act, in 1997. Under the Death With

Dignity Act, a person who sought physician-

assisted suicide would have to meet certain

criteria:

• He must be an Oregon resident, at least 18 years

old, and must have decision making capacity.

• The person must be terminally ill, having six

months or less to live.

 63

• The person must make one written and two oral

requests for medication to end his/her life, the

written one substantially in the form provided

in the Act, signed, dated, witnessed by two

persons in the presence of the patient who

attest that the person is capable, acting

voluntarily and not being coerced to sign the

request. There are stringent qualifications as

to who may act as a witness.

• The patient’s decision must be an ‘informed’

one, and the attending physician is obligated to

provide the patient with information about the

diagnosis, prognosis, potential risks, and

probable consequences of taking the prescribed

medication, and alternatives, including, but not

limited to comfort care, hospice care and pain

control. Another physician must confirm the

diagnosis, the patient’s decision making

capacity, and voluntariness of the patient’s

decisions.

• Counselling has to be provided if the patient is

 64

suffering from depression or a mental disorder

which may impact his judgment.

• There has to be a waiting period of 15 days,

next of kin have to be notified, and State

authorities have to be informed.

• The patient can rescind his decision at any time

In response to concerns that patients with

depression may seek to end their lives, the 1999

amendment provides that the attending physician

must determine that the patient does not have

‘depression causing impaired judgment’ before

prescribing the medication.

Under the law, a person who met all requirements

could receive a prescription of a barbiturate

that would be sufficient to cause death.

However, the lethal injection must be

administered by the patient himself, and

physicians are prohibited from administering it.

The landmark case to declare that the practice

of euthanasia by doctors to help their patients

shall not be taken into cognizance was Gonzalez

 65

vs Oregon decided in 2006.

After the Oregon Law was enacted about 200

persons have had euthanasia in Oregon.

Washington:

Washington was the second state in U.S.A. which

allowed the practice of physician assisted death

in the year 2008 by passing the Washington Death

with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and

Washington) in U.S.A. to legalize physician

assisted deaths, but this was done by the State

judiciary and not the legislature. On December

31, 2009, the Montana Supreme Court delivered

its verdict in the case of Baxter v. Montana

permitting physicians to prescribe lethal

indication. The court held that there was

“nothing in Montana Supreme Court precedent or

Montana statutes indicating that physician aid

 66

in dying is against public policy.”

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or

physician assisted death legal. Michigan banned

euthanasia and assisted suicide in 1993, after

Dr. Kevorkian (who became known as ‘doctor

death’) began encouraging and assisting in

suicides. He was convicted in 1999 for an

assisted suicide displayed on television, his

medical licence cancelled, and he spent 8 years

in jail.

In 1999 the State of Texas enacted the Texas

Futile Care Law which entitles Texas hospitals

and doctors, in some situations, to withdraw

life support measures, such as mechanical

respiration, from terminally ill patient when

such treatment is considered futile and

inappropriate. However, Texas has not legalized

euthanasia or physician assisted death. In

California, though 75 of people support

 67

physician assisted death, the issue is highly

controversial in the State legislature. Forty

States in USA have enacted laws which explicitly

make it a crime to provide another with the

means of taking his or her life.

In 1977 California legalized living wills, and

other States soon followed suit. A living will

(also known as advance directive or advance

decision) is an instruction given by an

individual while conscious specifying what

action should be taken in the event he/she is

unable to make a decision due to illness or

incapacity, and appoints a person to take such

decisions on his/her behalf. It may include a

directive to withdraw life support on certain

eventualities.

Canada:

In Canada, physician assisted suicide is illegal

vide Section 241(b) of the Criminal Code of

 68

Canada.

The leading decision of the Canadian Supreme

Court in this connection is Sue Rodriguez v.

British Columbia (Attorney General), (1993) 3

SCR 519. Rodriguez, a woman of 43, was

diagnosed with Amyotrophic Lateral Sclerosis

(ALS), and requested the Canadian Supreme Court

to allow someone to aid her in ending her life.

Her condition was deteriorating rapidly, and the

doctors told her that she would soon lose the

ability to swallow, speak, walk, and move her

body without assistance. Thereafter she would

lose her capacity to breathe without a

respirator, to eat without a gastrotomy, and

would eventually be confined to bed. Her life

expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided.

By a 5 to 4 majority her plea was rejected.

Justice Sopinka, speaking for the majority

(which included Justices La Forest, Gonthier,

Iacobucci and Major) observed :

 69

“Sanctity of life has been

understood historically as excluding
freedom of choice in the self
infliction of death, and certainly in
the involvement of others in carrying
out that choice. At the very least, no
new consensus has emerged in society
opposing the right of the State to
regulate the involvement of others in
exercising power over individuals
ending their lives.”

The minority, consisting of Chief Justice Lamer

and Justices L’Heureux-Dube, Cory and McLachlin,

dissented.

PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as

withdrawing medical treatment with a deliberate

intention of causing the patient’s death. For

example, if a patient requires kidney dialysis to

survive, not giving dialysis although the machine is

available, is passive euthanasia. Similarly, if a

patient is in coma or on a heart lung machine,

withdrawing of the machine will ordinarily result in

passive euthanasia. Similarly not giving life

saving medicines like antibiotics in certain

 70

situations may result in passive euthanasia.

Denying food to a person in coma or PVS may also

amount to passive euthanasia.

52. As already stated above, euthanasia can be both

voluntary or non voluntary. In voluntary passive

euthanasia a person who is capable of deciding for

himself decides that he would prefer to die (which

may be for various reasons e.g., that he is in great

pain or that the money being spent on his treatment

should instead be given to his family who are in

greater need, etc.), and for this purpose he

consciously and of his own free will refuses to take

life saving medicines. In India, if a person

consciously and voluntarily refuses to take life

saving medical treatment it is not a crime. Whether

not taking food consciously and voluntarily with the

aim of ending one’s life is a crime under section

309 IPC (attempt to commit suicide) is a question

which need not be decided in this case.

53. Non voluntary passive euthanasia implies that

 71

the person is not in a position to decide for

himself e.g., if he is in coma or PVS. The present

is a case where we have to consider non voluntary

passive euthanasia i.e. whether to allow a person to

die who is not in a position to give his/her

consent.

54. There is a plethora of case law on the subject

of the Courts all over the world relating to both

active and passive euthanasia. It is not necessary

to refer in detail to all the decisions of the

Courts in the world on the subject of euthanasia

or physically assisted dead (p.a.d.) but we think it

appropriate to refer in detail to certain landmark

decisions, which have laid down the law on the

subject.

THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993)

All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of

Lords in the U.K., the facts were that one Anthony

Bland aged about 17 went to the Hillsborough Ground

 72

on 15th April 1989 to support the Liverpool Football

Club. In the course of the disaster which occurred

on that day, his lungs were crushed and punctured

and the supply to his brain was interrupted. As a

result, he suffered catastrophic and irreversible

damage to the higher centres of the brain. For

three years, he was in a condition known as

‘persistent vegetative state (PVS). This state

arises from the destruction of the cerebral cortex

on account of prolonged deprivation of oxygen, and

the cerebral cortex of Anthony had resolved into a

watery mass. The cortex is that part of the brain

which is the seat of cognitive function and sensory

capacity. Anthony Bland could not see, hear or feel

anything. He could not communicate in any way. His

consciousness, which is an essential feature of an

individual personality, had departed forever.

However, his brain-stem, which controls the

reflective functions of the body, in particular the

heart beat, breathing and digestion, continued to

operate. He was in persistent vegetative state

(PVS) which is a recognized medical condition quite

 73

distinct from other conditions sometimes known as

"irreversible coma", "the Guillain-Barre syndrome",

"the locked-in syndrome" and "brain death".

56. The distinguishing characteristic of PVS is that

the brain stem remains alive and functioning while

the cortex has lost its function and activity. Thus

the PVS patient continues to breathe unaided and his

digestion continues to function. But although his

eyes are open, he cannot see. He cannot hear.

Although capable of reflex movement, particularly in

response to painful stimuli, the patient is

uncapable of voluntary movement and can feel no

pain. He cannot taste or smell. He cannot speak or

communicate in any way. He has no cognitive

function and thus can feel no emotion, whether

pleasure or distress. The absence of cerebral

function is not a matter of surmise; it can be

scientifically demonstrated. The space which the

brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition,

 74

feeding and hydration were achieved by artificial

means of a nasogastric tube while the excretory

functions were regulated by a catheter and enemas.

According to eminent medical opinion, there was no

prospect whatsoever that he would ever make a

recovery from his condition, but there was every

likelihood that he would maintain this state of

existence for many years to come provided the

artificial means of medical care was continued.

58. In this state of affairs the medical men in

charge of Anthony Bland case took the view, which

was supported by his parents, that no useful purpose

would be served by continuing medical care, and that

artificial feeding and other measures aimed at

prolonging his existence should be stopped. Since

however, there was a doubt as to whether this course

might constitute a criminal offence, the hospital

authorities sought a declaration from the British

High Court to resolve these doubts.

59. The declaration was granted by the Family

 75

Division of the High Court on 19.11.1992 and that

judgment was affirmed by the Court of Appeal on

9.12.1992. A further appeal was made to the House

of Lords which then decided the case.

60. The broad issued raised before the House of

Lords in the Airedale case (supra) was “In what

circumstances, if ever, can those having a duty to

feed an invalid lawfully stop doing so?” In fact

this is precisely the question raised in the present

case of Aruna Shanbaug before us.

61. In Airedale’s case (supra), Lord Keith of

Kinkel, noted that it was unlawful to administer

treatment to an adult who is conscious and of sound

mind, without his consent. Such a person is

completely at liberty to decline to undergo

treatment, even if the result of his doing so will

be that he will die. This extends to the situation

where the person in anticipation of his entering

into a condition such as PVS, gives clear

instructions that in such an event he is not to be

 76

given medical care, including artificial feeding,

designed to keep him alive.

62. It was held that if a person, due to accident or

some other cause becomes unconscious and is thus not

able to give or withhold consent to medical

treatment, in that situation it is lawful for

medical men to apply such treatment as in their

informed opinion is in the best interests of the

unconscious patient. That is what happened in the

case of Anthony Bland when he was first dealt with

by the emergency services and later taken to

hospital.

63. When the incident happened the first imperative

was to prevent Anthony from dying, as he would

certainly have done in the absence of the steps that

were taken. For a time, no doubt, there was some

hope that he might recover sufficiently for him to

be able to live a life that had some meaning. Some

patients who have suffered damage to the cerebral

cortex have, indeed, made a complete recovery. It

 77

all depends on the degree of damage. But sound

medical opinion takes the view that if a P.V.S.

patient shows no signs of recovery after six months,

or at most a year, then there is no prospect

whatever of any recovery.

64. There are techniques available which make it

possible to ascertain the state of the cerebral

cortex, and in Anthony Bland's case these indicated

that, it had degenerated into a mass of watery

fluid. In this situation the question before the

House of Lords was whether the doctors could

withdraw medical treatment or feeding Anthony Bland

thus allowing him to die.

65. It was held by Lord Keith that a medical

practitioner is under no duty to continue to treat

such a patient where a large body of informed and

responsible medical opinion is to the effect that no

benefit at all would be conferred by continuance of

the treatment. Existence in a vegetative state with

no prospect of recovery is by that opinion regarded

 78

as not being of benefit to the patient.

66. Given that existence in the persistent

vegetative state is of no benefit to the patient,

the House of Lords then considered whether the

principle of the sanctity of life which is the

concern of the State (and the Judiciary is one of

the arms of the State) required the Court to hold

that medical treatment to Bland could not be

discontinued.

67. Lord Keith observed that the principle of

sanctity of life is not an absolute one. For

instance, it does not compel the medical

practitioner on pain of criminal sanction to treat a

patient, who will die, if he does not, according to

the express wish of the patient. It does not

authorize forcible feeding of prisoners on hunger

strike. It does not compel the temporary keeping

alive of patients who are terminally ill where to do

so would merely prolong their suffering. On the

other hand, it forbids the taking of active measures

 79

to cut short the life of a terminally-ill patient

(unless there is legislation which permits it).

68. Lord Keith observed that although the decision

whether or not the continued treatment and cure of a

PVS patient confers any benefit on him is

essentially one for the medical practitioners in

charge of his case to decide, as a matter of routine

the hospital/medical practitioner should apply to

the Family Division of the High Court for endorsing

or reversing the said decision. This is in the

interest of the protection of the patient,

protection of the doctors, and for the reassurance

of the patient’s family and the public.

69. In Airdale’s case (Supra) another Judge on the

Bench, Lord Goff of Chievely observed:-

“The central issue in the present case
has been aptly stated by the Master of
the Rolls to be whether artificial
feeding and antibiotic drugs may
lawfully be withheld from an insensate
patient with no hope of recovery when
it is known that if that is done the
patient will shortly thereafter die.
The Court of Appeal, like the
President, answered this question
generally in the affirmative, and (in
 80

the declarations made or approved by

them) specifically also in the
affirmative in relation to Anthony
Bland . I find myself to be in
agreement with the conclusions so
reached by all the judges below,
substantially for the reasons given by
them. But the matter is of such
importance that I propose to express my
reasons in my own words.

I start with the simple fact that, in

law, Anthony is still alive. It is true
that his condition is such that it can
be described as a living death; but he
is nevertheless still alive. This is
because, as a result of developments in
modern medical technology, doctors no
longer associate death exclusively with
breathing and heart beat, and it has
come to be accepted that death occurs
when the brain, and in particular the
brain stem, has been destroyed (see
Professor Ian Kennedy's Paper entitled
"Switching off Life Support Machines:
The Legal Implications" reprinted in
Treat Me Right, Essays in Medical Law
and Ethics, (1988)), especially at pp.
351-2, and the material there cited).
There has been no dispute on this point
in the present case, and it is
unnecessary for me to consider it
further. The evidence is that Anthony's
brain stem is still alive and
functioning and it follows that, in the
present state of medical science, he is
still alive and should be so regarded
as a matter of law.

It is on this basis that I turn to the

applicable principles of law. Here, the
fundamental principle is the principle
of the sanctity of human life – a
 81

principle long recognized not only in

our own society but also in most, if
not all, civilized societies throughout
the modern world, as is indeed
evidenced by its recognition both in
article 2 of the European Convention of
Human Rights, and in article 6 of the
International Covenant of Civil and
Political Rights.

But this principle, fundamental though

it is, is not absolute. Indeed there
are circumstances in which it is lawful
to take another man's life, for example
by a lawful act of self-defence, or (in
the days when capital punishment was
acceptable in our society) by lawful
execution. We are not however concerned
with cases such as these. We are
concerned with circumstances in which
it may be lawful to withhold from a
patient medical treatment or care by
means of which his life may be
prolonged. But here too there is no
absolute rule that the patient's life
must be prolonged by such treatment or
care, if available, regardless of the
circumstances.

First, it is established that the

principle of self-determination
requires that respect must be given to
the wishes of the patient, so that if
an adult patient of sound mind refuses,
however unreasonably, to consent to
treatment or care by which his life
would or might be prolonged, the
doctors responsible for his care must
give effect to his wishes, even though
they do not consider it to be in his
best interests to do so (see
Schloendorff v . Society of New York
Hospital 105 N.E. 92, 93, per Cardozo
 82

J. (1914); S. v . McC. (Orse S.) and M

(D.S. Intervene); W v . W [1972] A.C.
24, 43, per Lord Reid; and Sidaway v .
Board of Governors of the Bethlem Royal
Hospital and the Maudsley Hospital
[1985] AC 871, 882, per Lord Scarman).
To this extent, the principle of the
sanctity of human life must yield to
the principle of self- determination
(see Court of Appeal Transcript in the
present case, at p. 38F per Hoffmann
L.J.), and, for present purposes
perhaps more important, the doctor's
duty to act in the best interests of
his patient must likewise be qualified.
On this basis, it has been held that a
patient of sound mind may, if properly
informed, require that life support
should be discontinued: see Nancy B.
v. Hotel Dieu de Quebec (1992) 86
D.L.R. (4th) 385. Moreover the same
principle applies where the patient's
refusal to give his consent has been
expressed at an earlier date, before he
became unconscious or otherwise
incapable of communicating it; though
in such circumstances especial care may
be necessary to ensure that the prior
refusal of consent is still properly to
be regarded as applicable in the
circumstances which have subsequently
occurred (see, e.g. In re T. (Adult:
Refusal of treatment) [1992] 3 W.L.R.
782). I wish to add that, in cases of
this kind, there is no question of the
patient having committed suicide, nor
therefore of the doctor having aided or
abetted him in doing so. It is simply
that the patient has, as he is entitled
to do, declined to consent to treatment
which might or would have the effect of
prolonging his life, and the doctor
has, in accordance with his duty,
 83

complied with his patient's wishes.

But in many cases not only may the

patient be in no condition to be able
to say whether or not he consents to
the relevant treatment or care, but
also he may have given no prior
indication of his wishes with regard to
it. In the case of a child who is a
ward of court, the court itself will
decide whether medical treatment should
be provided in the child's best
interests, taking into account medical
opinion. But the court cannot give its
consent on behalf of an adult patient
who is incapable of himself deciding
whether or not to consent to treatment.
I am of the opinion that there is
nevertheless no absolute obligation
upon the doctor who has the patient in
his care to prolong his life,
regardless of the circumstances.
Indeed, it would be most startling, and
could lead to the most adverse and
cruel effects upon the patient, if any
such absolute rule were held to exist.
It is scarcely consistent with the
primacy given to the principle of self-
determination in those cases in which
the patient of sound mind has declined
to give his consent, that the law
should provide no means of enabling
treatment to be withheld in appropriate
circumstances where the patient is in
no condition to indicate, if that was
his wish, that he did not consent to
it. The point was put forcibly in the
judgment of the Supreme Judicial Court
of Massachusetts in Superintendent of
Belchertown State School v. Saikewicz
(1977) 370 N.E. 2d. 417, 428, as
follows:
 84

"To presume that the incompetent person

must always be subjected to what many
rational and intelligent persons may
decline is to downgrade the status of
the incompetent person by placing a
lesser value on his intrinsic human
worth and vitality."

I must however stress, at this point,

that the law draws a crucial
distinction between cases in which a
doctor decides not to provide, or to
continue to provide, for his patient
treatment or care which could or might
prolong his life, and those in which he
decides, for example by administering a
lethal drug, actively to bring his
patient's life to an end. As I have
already indicated, the former may be
lawful, either because the doctor is
giving effect to his patient's wishes
by withholding the treatment or care,
or even in certain circumstances in
which (on principles which I shall
describe) the patient is incapacitated
from stating whether or not he gives
his consent. But it is not lawful for a
doctor to administer a drug to his
patient to bring about his death, even
though that course is prompted by a
humanitarian desire to end his
suffering, however great that suffering
may be: see Reg. v. Cox (Unreported),
Ognall J., Winchester Crown Court, 18
September 1992. So to act is to cross
the Rubicon which runs between on the
one hand the care of the living patient
and on the other hand euthanasia -
actively causing his death to avoid or
to end his suffering. Euthanasia is not
lawful at common law. It is of course
well known that there are many
responsible members of our society who
 85

believe that euthanasia should be made

lawful; but that result could, I
believe, only be achieved by
legislation which expresses the
democratic will that so fundamental a
change should be made in our law, and
can, if enacted, ensure that such
legalised killing can only be carried
out subject to appropriate supervision
and control. It is true that the
drawing of this distinction may lead to
a charge of hypocrisy; because it can
be asked why, if the doctor, by
discontinuing treatment, is entitled in
consequence to let his patient die, it
should not be lawful to put him out of
his misery straight away, in a more
humane manner, by a lethal injection,
rather than let him linger on in pain
until he dies. But the law does not
feel able to authorize euthanasia, even
in circumstances such as these; for
once euthanasia is recognized as lawful
in these circumstances, it is difficult
to see any logical basis for excluding
it in others.

At the heart of this distinction lies a

theoretical question. Why is it that
the doctor who gives his patient a
lethal injection which kills him
commits an unlawful act and indeed is
guilty of murder, whereas a doctor who,
by discontinuing life support, allows
his patient to die, may not act
unlawfully - and will not do so, if he
commits no breach of duty to his
patient? Professor Glanville Williams
has suggested (see his Textbook of
Criminal Law, 2nd ed., p. 282) that the
reason is that what the doctor does
when he switches off a life support
machine 'is in substance not an act but
 86

an omission to struggle, and that 'the

omission is not a breach of duty by the
doctor because he is not obliged to
continue in a hopeless case'.

I agree that the doctor's conduct in

discontinuing life support can properly
be categorized as an omission. It is
true that it may be difficult to
describe what the doctor actually does
as an omission, for example where he
takes some positive step to bring the
life support to an end. But
discontinuation of life support is, for
present purposes, no different from not
initiating life support in the first
place. In each case, the doctor is
simply allowing his patient to die in
the sense that he is desisting from
taking a step which might, in certain
circumstances, prevent his patient from
dying as a result of his pre-existing
condition; and as a matter of general
principle an omission such as this will
not be unlawful unless it constitutes a
breach of duty to the patient. I also
agree that the doctor's conduct is to
be differentiated from that of, for
example, an interloper who maliciously
switches off a life support machine
because, although the interloper may
perform exactly the same act as the
doctor who discontinues life support,
his doing so constitutes interference
with the life-prolonging treatment then
being administered by the doctor.
Accordingly, whereas the doctor, in
discontinuing life support, is simply
allowing his patient to die of his pre-
existing condition, the interloper is
actively intervening to stop the doctor
from prolonging the patient's life, and
such conduct cannot possibly be
 87

categorised as an omission.

The distinction appears, therefore, to

be useful in the present context in
that it can be invoked to explain how
discontinuance of life support can be
differentiated from ending a patient's
life by a lethal injection. But in the
end the reason for that difference is
that, whereas the law considers that
discontinuance of life support may be
consistent with the doctor's duty to
care for his patient, it does not, for
reasons of policy, consider that it
forms any part of his duty to give his
patient a lethal injection to put him
out of his agony.

I return to the patient who, because

for example he is of unsound mind or
has been rendered unconscious by
accident or by illness, is incapable of
stating whether or not he consents to
treatment or care. In such
circumstances, it is now established
that a doctor may lawfully treat such a
patient if he acts in his best
interests, and indeed that, if the
patient is already in his care, he is
under a duty so to treat him: see In re
F [1990] 2 AC 1, in which the legal
principles governing treatment in such
circumstances were stated by this
House. For my part I can see no reason
why, as a matter of principle, a
decision by a doctor whether or not to
initiate, or to continue to provide,
treatment or care which could or might
have the effect of prolonging such a
patient's life, should not be governed
by the same fundamental principle. Of
course, in the great majority of cases,
the best interests of the patient are
 88

likely to require that treatment of

this kind, if available, should be
given to a patient. But this may not
always be so. To take a simple example
given by Thomas J. in Re J.H.L.
(Unreported) (High Court of New
Zealand) 13 August 1992, at p. 35), to
whose judgment in that case I wish to
pay tribute, it cannot be right that a
doctor, who has under his care a
patient suffering painfully from
terminal cancer, should be under an
absolute obligation to perform upon him
major surgery to abate another
condition which, if unabated, would or
might shorten his life still further.
The doctor who is caring for such a
patient cannot, in my opinion, be under
an absolute obligation to prolong his
life by any means available to him,
regardless of the quality of the
patient's life. Common humanity
requires otherwise, as do medical
ethics and good medical practice
accepted in this country and overseas.
As I see it, the doctor's decision
whether or not to take any such step
must (subject to his patient's ability
to give or withhold his consent) be
made in the best interests of the
patient. It is this principle too
which, in my opinion, underlies the
established rule that a doctor may,
when caring for a patient who is, for
example, dying of cancer, lawfully
administer painkilling drugs despite
the fact that he knows that an
incidental effect of that application
will be to abbreviate the patient's
life. Such a decision may properly be
made as part of the care of the living
patient, in his best interests; and, on
this basis, the treatment will be
 89

lawful. Moreover, where the doctor's

treatment of his patient is lawful, the
patient's death will be regarded in law
as exclusively caused by the injury or
disease to which his condition is
attributable.

It is of course the development of

modern medical technology, and in
particular the development of life
support systems, which has rendered
cases such as the present so much more
relevant than in the past. Even so,
where (for example) a patient is
brought into hospital in such a
condition that, without the benefit of
a life support system, he will not
continue to live, the decision has to
be made whether or not to give him that
benefit, if available. That decision
can only be made in the best interests
of the patient. No doubt, his best
interests will ordinarily require that
he should be placed on a life support
system as soon as necessary, if only to
make an accurate assessment of his
condition and a prognosis for the
future. But if he neither recovers
sufficiently to be taken off it nor
dies, the question will ultimately
arise whether he should be kept on it
indefinitely. As I see it, that
question (assuming the continued
availability of the system) can only be
answered by reference to the best
interests of the patient himself,
having regard to established medical
practice. Indeed, if the justification
for treating a patient who lacks the
capacity to consent lies in the fact
that the treatment is provided in his
best interests, it must follow that the
treatment may, and indeed ultimately
 90

should, be discontinued where it is no

longer in his best interests to provide
it. The question which lies at the
heart of the present case is, as I see
it, whether on that principle the
doctors responsible for the treatment
and care of Anthony Bland can
justifiably discontinue the process of
artificial feeding upon which the
prolongation of his life depends.

It is crucial for the understanding of

this question that the question itself
should be correctly formulated. The
question is not whether the doctor
should take a course which will kill
his patient, or even take a course
which has the effect of accelerating
his death. The question is whether the
doctor should or should not continue to
provide his patient with medical
treatment or care which, if continued,
will prolong his patient's life. The
question is sometimes put in striking
or emotional terms, which can be
misleading. For example, in the case of
a life support system, it is sometimes
asked: Should a doctor be entitled to
switch it off, or to pull the plug? And
then it is asked: Can it be in the best
interests of the patient that a doctor
should be able to switch the life
support system off, when this will
inevitably result in the patient's
death? Such an approach has rightly
been criticised as misleading, for
example by Professor Ian Kennedy (in
his paper in Treat Me Right, Essays in
Medical Law and Ethics (1988), and by
Thomas J. in Re J.H.L. at pp. 21- 22.
This is because the question is not
whether it is in the best interests of
the patient that he should die. The
 91

question is whether it is in the best

interests of the patient that his life
should be prolonged by the continuance
of this form of medical treatment or
care.

The correct formulation of the question

is of particular importance in a case
such as the present, where the patient
is totally unconscious and where there
is no hope whatsoever of any
amelioration of his condition. In
circumstances such as these, it may be
difficult to say that it is in his best
interests that the treatment should be
ended. But if the question is asked, as
in my opinion it should be, whether it
is in his best interests that treatment
which has the effect of artificially
prolonging his life should be
continued, that question can sensibly
be answered to the effect that it is
not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients

in Persistent Vegetative State issued in September

1992 by the Medical Ethics Committee of the British

Medical Association certain safeguards were

mentioned which

should be observed before constituting life support

for such patients:-

 92

“(1) Every effort should be made at

rehabilitation for at least six months
after the injury; (2) The diagnosis of
irreversible PVS should not be
considered confirmed until at least
twelve months after the injury, with
the effect that any decision to
withhold life prolonging treatment will
be delayed for that period; (3) The
diagnosis should be agreed by two other
independent doctors; and (4) Generally,
the wishes of the patient's immediate
family will be given great weight.”

71. Lord Goff observed that discontinuance of

artificial feeding in such cases is not equivalent

to cutting a mountaineer’s rope, or severing the air

pipe of a deep sea diver. The true question is not

whether the doctor should take a course in which he

will actively kill his patient, but rather whether

he should continue to provide his patient with

medical treatment or care which, if continued, will

prolong his life.

72. Lord Browne-Wilkinson was of the view that

removing the nasogastric tube in the case of Anthony

Bland cannot be regarded as a positive act causing

the death. The tube itself, without the food being

 93

supplied through it, does nothing. Its non removal

itself does not cause the death since by itself, it

does not sustain life. Hence removal of the tube

would not constitute the actus reus of murder,

since such an act would not cause the death.

73. Lord Mustill observed:-

“Threaded through the technical

arguments addressed to the House were
the strands of a much wider position,
that it is in the best interests of the
community at large that Anthony Bland’s
life should now end. The doctors have
done all they can. Nothing will be
gained by going on and much will be
lost. The distress of the family will
get steadily worse. The strain on the
devotion of a medical staff charged
with the care of a patient whose
condition will never improve, who may
live for years and who does not even
recognize that he is being cared for,
will continue to mount. The large
resources of skill, labour and money
now being devoted to Anthony Bland
might in the opinion of many be more
fruitfully employed in improving the
condition of other patients, who if
treated may have useful, healthy and
enjoyable lives for years to come.”

74. Thus all the Judges of the House of Lords in the

Airedale case (supra) were agreed that Anthony Bland

 94

should be allowed to die.

75. Airedale (1993) decided by the House of Lords

has been followed in a number of cases in U.K., and

the law is now fairly well settled that in the case

of incompetent patients, if the doctors act on the

basis of informed medical opinion, and withdraw the

artificial life support system if it is in the

patient’s best interest, the said act cannot be

regarded as a crime.

76. The question, however, remains as to who is to

decide what is the patient’s best interest where he

is in a persistent vegetative state (PVS)? Most

decisions have held that the decision of the

parents, spouse, or other close relative, should

carry weight if it is an informed one, but it is not

decisive (several of these decisions have been

referred to in Chapter IV of the 196th Report of the

Law Commission of India on Medical Treatment to

Terminally ill Patients).

 95

77. It is ultimately for the Court to decide, as

parens patriae, as to what is is in the best

interest of the patient, though the wishes of close

relatives and next friend, and opinion of medical

practitioners should be given due weight in coming

to its decision. As stated by Balcombe, J. in In Re

J ( A Minor Wardship : Medical Treatment) 1990(3)

All E.R. 930, the Court as representative of the

Sovereign as parens patriae will adopt the same

standard which a reasonable and responsible parent

would do.

78. The parens patriae (father of the country)

jurisdiction was the jurisdiction of the Crown,

which, as stated in Airedale, could be traced to the

13th Century. This principle laid down that as the

Sovereign it was the duty of the King to protect the

person and property of those who were unable to

protect themselves. The Court, as a wing of the

State, has inherited the parens patriae jurisdiction

which formerly belonged to the King.

U.S. decisions
 96

79. The two most significant cases of the U.S.

Supreme Court that addressed the issue whether there

was a federal constitutional right to assisted

suicide arose from challenges to State laws banning

physician assisted suicide brought by terminally ill

patients and their physicians. These were Washington

vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs.

Quill 521 U.S. 793 (1997).

80. In Glucksberg’s case, the U.S. Supreme Court

held that the asserted right to assistance in

committing suicide is not a fundamental liberty

interest protected by the Due Process Clause of the

Fourteenth Amendment. The Court observed :

“The decision to commit suicide with
the assistance of another may be just
as personal and profound as the
decision to refuse unwanted medical
treatment, but it has never enjoyed
similar legal protection. Indeed the
two acts are widely and reasonably
regarded as quite distinct.”

81. The Court went on to conclude that the

Washington statute being challenged was rationally

 97

related to five legitimate government interest :

protection of life, prevention of suicide,

protection of ethical integrity of the medical

profession, protection of vulnerable groups, and

protection against the “slippery slope” towards

euthanasia. The Court then noted that perhaps the

individual States were more suited to resolving or

at least addressing the myriad concerns raised by

both proponents and opponents of physician assisted

suicide. The Court observed :

“Throughout the Nation, Americans

are engaged in an earnest and profound
debate about the morality, legality and
practicality of physician assisted
suicide. Our holding permits this
debate to continue, as it should in a
democratic society.”

82. In Vacco’s case (supra) the U.S. Supreme Court

again recognized the distinction between refusing
life saving medical treatment and giving lethal
medication. The Court disagreed with the view of
the Second Circuit Federal Court that ending or
refusing lifesaving medical treatment is nothing
more nor less than assisted suicide. The Court held
that “the distinction between letting a patient die
and making that patient die is important, logical,
 98

rational, and well established”. The Court held

that the State of New York could validly ban the
latter.

83. In Cruzan v. Director, MDH, 497 U.S.

261(1990) decided by the U.S. Supreme Court the
majority opinion was delivered by the Chief Justice
Rehnquist.

84. In that case, the petitioner Nancy Cruzan

sustained injuries in an automobile accident and lay

in a Missouri State hospital in what has been

referred to as a persistent vegetative state (PVS),

a condition in which a person exhibits motor

reflexes but evinces no indication of significant

cognitive function. The state of Missouri was

bearing the cost of her care. Her parents and co-

guardians applied to the Court for permission to

withdraw her artificial feeding and hydration

equipment and allow her to die. While the trial

Court granted the prayer, the State Supreme Court of

Missouri reversed, holding that under a statute in

the State of Missouri it was necessary to prove by

 99

clear and convincing evidence that the incompetent

person had wanted, while competent, withdrawal of

life support treatment in such an eventuality. The

only evidence led on that point was the alleged

statement of Nancy Cruzan to a housemate about a

year before the accident that she did not want life

as a ‘vegetable’. The State Supreme Court was of

the view that this did not amount to saying that

medical treatment or nutrition or hydration should

be withdrawn.

85. Chief Justice Rehnquist delivering the opinion

of the Court (in which Justices White, O'Connor,

Scalia, and Kennedy, joined) in his judgment first

noted the facts:-

“On the night of January 11, 1983,

Nancy Cruzan lost control of her car as
she traveled down Elm Road in Jasper
County, Missouri. The vehicle
overturned, and Cruzan was discovered
lying face down in a ditch without
detectable respiratory or cardiac
function. Paramedics were able to
restore her breathing and heartbeat at
the accident site, and she was
transported to a hospital in an
unconscious state. An attending
 10

neurosurgeon diagnosed her as having

sustained probable cerebral contusions
compounded by significant anoxia (lack
of oxygen). The Missouri trial court in
this case found that permanent brain
damage generally results after 6
minutes in an anoxic state; it was
estimated that Cruzan was deprived of
oxygen from 12 to 14 minutes. She
remained in a coma for approximately
three weeks, and then progressed to an
unconscious state in which she was able
to orally ingest some nutrition. In
order to ease feeding and further the
recovery, surgeons implanted a
gastrostomy feeding and hydration tube
in Cruzan with the consent of her then
husband. Subsequent rehabilitative
efforts proved unavailing. She now lies
in a Missouri state hospital in what is
commonly referred to as a persistent
vegetative state: generally, a
condition in which a person exhibits
motor reflexes but evinces no
indications of significant cognitive
function. 1 The State of Missouri is
bearing the cost of her care. [497 U.S.
261, 267]

After it had become apparent that Nancy

Cruzan had virtually no chance of
regaining her mental faculties, her
parents asked hospital employees to
terminate the artificial nutrition and
hydration procedures. All agree that
such a [497 U.S. 261, 268] removal
would cause her death. The employees
refused to honor the request without
court approval. The parents then sought
and received authorization from the
state trial court for termination.”
 10

86. While the trial Court allowed the petition the

State Supreme Court of Missouri reversed. The US
Supreme Court by majority affirmed the verdict of
the State Supreme Court

87. Chief Justice Rehnquist noted that in law even

touching of one person by another without consent

and without legal justification was a battery, and

hence illegal. The notion of bodily integrity has

been embodied in the requirement that informed

consent is generally required for medical treatment.

As observed by Justice Cardozo, while on the Court

of Appeals of New York “Every human being of adult

years and sound mind has a right to determine what

shall be done with his own body, and a surgeon who

performs an operation without his patient’s consent

commits an assault, for which he is liable in

damages.” vide Schloendorff vs. Society of New

York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93

(1914). Thus the informed consent doctrine has

become firmly entrenched in American Tort Law. The

logical corollary of the doctrine of informed

 10

consent is that the patient generally possesses the

right not to consent, that is to refuse treatment.

88. The question, however, arises in cases where the

patient is unable to decide whether the treatment

should continue or not e.g. if he is in coma or PVS.

Who is to give consent to terminate the treatment in

such a case? The learned Chief Justice referred to

a large number of decisions of Courts in U.S.A. in

this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen

Quinlan suffered severe brain damage as a result of

anoxia, and entered into PVS. Her father sought

judicial approval to disconnect her respirator. The

New Jersey Supreme Court granted the prayer, holding

that Karen had a right of privacy grounded in the

U.S. Constitution to terminate treatment. The Court

concluded that the way Karen’s right to privacy

could be exercised would be to allow her guardian

and family to decide whether she would exercise it

in the circumstances.
 10

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985),

however, the New Jersey Supreme Court, in a case of

an 84 year old incompetent nursing home resident who

had suffered irreversible mental and physical

ailments, contrary to its decision in Quinlan’s

case, decided to base its decision on the common law

right to self determination and informed consent.

This right can be exercised by a surrogate decision

maker when there was a clear evidence that the

incompetent person would have exercised it. Where

such evidence was lacking the Court held that an

individual’s right could still be invoked in certain

circumstances under objective ‘best interest’

standards. Where no trustworthy evidence existed

that the individual would have wanted to terminate

treatment, and a person’s suffering would make the

administration of life sustaining treatment

inhumane, a pure objective standard could be used to

terminate the treatment. If none of these

conditions obtained, it was best to err in favour of

preserving life.
 10

91. What is important to note in Cruzan’s case

(supra) is that there was a statute of the State of

Missouri, unlike in Airedale’s case (where there was

none), which required clear and convincing evidence

that while the patient was competent she had desired

that if she becomes incompetent and in a PVS her

life support should be withdrawn.

92. In Cruzan’s case (supra) the learned Chief Justice

observed :

“Not all incompetent patients will

have loved ones available to serve as
surrogate decision makers. And even
where family members are present, there
will be, of course, some unfortunate
situations in which family members will
not act to protect a patient. A State
is entitled to guard against potential
abuses in such situations.”

93. The learned Chief Justice further observed :

“An erroneous decision not to

terminate results in maintenance of the
status quo; the possibility of
subsequent developments such as
advancements in medical science, the
discovery of new evidence regarding the
 10

patient’s intent, changes in the law,

or simply the unexpected death of the
patient despite the administration of
life-sustaining treatment, at least
create the potential that a wrong
decision will eventually be corrected
or its impact mitigated. An erroneous
decision to withdraw life-sustaining
treatment, however, is not susceptible
of correction.”

94. No doubt Mr. Justice Brennan (with whom Justices

Marshall and Blackmun joined) wrote a powerful

dissenting opinion, but it is not necessary for us

to go into the question whether the view of the

learned Chief Justice or that of Justice Brennan, is

correct.

95. It may be clarified that foreign decisions have

only persuasive value in our country, and are not

binding authorities on our Courts. Hence we can

even prefer to follow the minority view, rather than

the majority view, of a foreign decision, or follow

an overruled foreign decision.

96. Cruzan’s case (supra) can be distinguished on

 10

the simple ground that there was a statute in the

State of Missouri, whereas there was none in the

Airedale’s case nor in the present case before us.

We are, therefore, of the opinion that the

Airedale’s case (supra) is more apposite as a

precedent for us. No doubt foreign decisions are

not binding on us, but they certainly have

persuasive value.

LAW IN INDIA

97. In India abetment of suicide (Section 306 Indian

Penal Code) and attempt to suicide (Section 309 of

Indian Penal Code) are both criminal offences. This

is in contrast to many countries such as USA where

attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme

Court in Gian Kaur vs. State of Punjab, 1996(2)

SCC 648 held that both euthanasia and assisted

suicide are not lawful in India. That decision

overruled the earlier two Judge Bench decision of

the Supreme Court in P. Rathinam vs. Union of

 10

India, 1994(3) SCC 394. The Court held that the

right to life under Article 21 of the Constitution

does not include the right to die (vide para 33).

In Gian Kaur’s case (supra) the Supreme Court

approved of the decision of the House of Lords in

Airedale’s case (supra), and observed that

euthanasia could be made lawful only by legislation.

99. Sections 306 and 309 IPC read as under :

“306. Abetment of suicide -If any

person commits suicide, whoever abets
the commission of such suicide, shall
be punished with imprisonment of either
description for a term which may extend
to ten years, and shall also be liable
to fine.

309.Attempt to commit suicide -

Whoever attempts to commit suicide
and does any act towards the commission
of such offence, shall be punished with
simple imprisonment for a term which
may extend to one year or with fine, or
with both.”

100. We are of the opinion that although Section 309

Indian Penal Code (attempt to commit suicide) has

been held to be constitutionally valid in Gian

 10

Kaur’s case (supra), the time has come when it

should be deleted by Parliament as it has become

anachronistic. A person attempts suicide in a

depression, and hence he needs help, rather than

punishment. We therefore recommend to Parliament to

consider the feasibility of deleting Section 309

from the Indian Penal Code.

101. It may be noted that in Gian Kaur’s case (supra)

although the Supreme Court has quoted with approval

the view of the House of Lords in Airedale’s case

(supra), it has not clarified who can decide whether

life support should be discontinued in the case of

an incompetent person e.g. a person in coma or PVS.

This vexed question has been arising often in India

because there are a large number of cases where

persons go into coma (due to an accident or some

other reason) or for some other reason are unable to

give consent, and then the question arises as to who

should give consent for withdrawal of life support.

102. This is an extremely important question in India

 10

because of the unfortunate low level of ethical

standards to which our society has descended, its

raw and widespread commercialization, and the

rampant corruption, and hence, the Court has to be

very cautious that unscrupulous persons who wish to

inherit the property of someone may not get him

eliminated by some crooked method.

103. Also, since medical science is advancing fast,

doctors must not declare a patient to be a hopeless

case unless there appears to be no reasonable

possibility of any improvement by some newly

discovered medical method in the near future. In

this connection we may refer to a recent news item

which we have come across on the internet of an

Arkansas man Terry Wallis, who was 19 years of age

and newly married with a baby daughter when in 1984

his truck plunged through a guard rail, falling 25

feet. He went into coma in the crash in 1984, but

after 24 years he has regained consciousness. This

was perhaps because his brain spontaneously rewired

itself by growing tiny new nerve connections to

 11

replace the ones sheared apart in the car crash.

Probably the nerve fibers from Terry Wallis’ cells

were severed but the cells themselves remained

intact, unlike Terri Schiavo, whose brain cells had

died (see Terri Schiavo’s case on Google).

104. However, we make it clear that it is experts

like medical practitioners who can decide whether

there is any reasonable possibility of a new medical

discovery which could enable such a patient to

revive in the near future.

WHEN CAN A PERSON IS SAID TO BE DEAD

105. It is alleged in the writ petition filed by Ms.

Pinky Virani (claiming to be the next friend of

Aruna Shanbaug) that in fact Aruna Shanbaug is

already dead and hence by not feeding her body any

more we shall not be killing her. The question

hence arises as to when a person can be said to be

dead ?

106. A person’s most important organ is his/her

 11

brain. This organ cannot be replaced. Other body

parts can be replaced e.g. if a person’s hand or leg

is amputed, he can get an artificial limb.

Similarly, we can transplant a kidney, a heart or a

liver when the original one has failed. However, we

cannot transplant a brain. If someone else’s brain

is transplanted into one’s body, then in fact, it

will be that other person living in one’s body. The

entire mind, including one’s personality, cognition,

memory, capacity of receiving signals from the five

senses and capacity of giving commands to the other

parts of the body, etc. are the functions of the

brain. Hence one is one’s brain. It follows that

one is dead when one’s brain is dead.

107. As is well-known, the brain cells normally do

not multiply after the early years of childhood

(except in the region called hippocampus), unlike

other cells like skin cells, which are regularly

dying and being replaced by new cells produced by

multiplying of the old cells. This is probably

because brain cells are too highly specialized to

 11

multiply. Hence if the brain cells die, they

usually cannot be replaced (though sometimes one

part of the brain can take over the function of

another part in certain situations where the other

part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen

which comes through the red cells in the blood. If

oxygen supply is cut off for more than six minutes,

the brain cells die and this condition is known as

anoxia. Hence, if the brain is dead a person is

said to be dead.

BRAIN DEATH

109. The term ‘brain death’ has developed various

meanings. While initially, death could be defined as

a cessation of breathing, or, more scientifically, a

cessation of heart-beat, recent medical advances

have made such definitions obsolete. In order to

understand the nature and scope of brain death, it

is worthwhile to look at how death was understood.

 11

Historically, as the oft-quoted definition in

Black’s Law Dictionary suggests, death was:

“The cessation of life; the ceasing to exist;

defined by physicians as a total stoppage of the

circulation of the blood, and a cessation of the

animal and vital functions consequent thereon, such

as respiration, pulsation, etc.”.1 This definition

saw its echo in numerous other texts and legal case

law. This includes many American precedents- such as

Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961)

(“Black's Law Dictionary, 4th Ed., defines death as

‘the cessation of life; the ceasing to

exist ....”’); and Sanger v. Butler, 101 S.W. 459,

462 (Tex. Civ. App. 1907) (“The Encyclopaedic

Dictionary, among others, gives the following

definitions of [death]: ‘The state of being dead;

the act or state of dying; the state or condition of

the dead.’ The Century Dictionary defines death as

‘cessation of life; that state of a being, animal or

vegetable, in which there is a total and permanent

1 Black's Law Dictionary 488 (4th ed., rev. 1968).

 11

cessation of all the vital functions.”’).2

110. This understanding of death emerged from a

cardiopulmonary perspective. In such cases, the

brain was usually irrelevant -- being understood

that the cessation of circulation would

automatically lead to the death of brain cells,

which require a great deal of blood to survive.

111. The invention of the ventilator and the

defibrillator in the 1920s altered this

understanding, it being now possible that the

cessation of respiration and circulation, though

critical, would no longer be irreversible3. Hence, a

present-day understanding of death as the

irreversible end of life must imply total brain

failure, such that neither breathing, nor

circulation is possible any more. The question of

the length of time that may determine such death is

significant, especially considering a significant

2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many
Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).
3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for
Determination of Death: A Comparative Analysis of the United States and
Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999).
 11

increase in organ donations across jurisdictions

over the last few years.

112. Brain death, may thus, be defined as “the

irreversible cessation of all functions of the

entire brain, including the brain stem”.4 It is

important to understand that this definition goes

beyond acknowledging consciousness -- a person who

is incapable of ever regaining consciousness will

not be considered to be brain dead as long as parts

of the brain e.g. brain stem that regulate

involuntary activity (such as response to light,

respiration, heartbeat etc.) still continue to

function. Likewise, if consciousness, albeit

severely limited, is present, then a person will be

considered to be alive even if he has suffered brain

stem death, wherein breathing and heartbeat can no

longer be regulated and must be mechanically

determined. Hence, the international standard for

brain death is usually considered to include “whole-

4 Section 1, Universal Determination of Death Act, (The United States

Legislation)
 11

brain death”, i.e., a situation where the higher

brain (i.e. the part of the brain that regulates

consciousness and thought), the cerebellum or mid-

brain, and the brain-stem have all ceased to

demonstrate any electrical activity whatsoever for a

significant amount of time. To say, in most cases,

that only the death of the higher brain would be a

criteria for ‘brain death’ may have certain serious

consequences -- for example, a foetus, technically

under this definition, would not be considered to be

alive at all. Similarly, as per this, different

definitions of death would apply to human and non-

human organisms.

113. Brain death, thus, is different from a

persistent vegetative state, where the brain stem

continues to work, and so some degree of reactions

may occur, though the possibility of regaining

consciousness is relatively remote. Even when a

person 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

 11

breathing, thus, would enable him or her to be

“alive”.

114. The first attempt to define death in this manner

came about in 1968, as a result of a Harvard

Committee constituted for the purpose.5 This

definition, widely criticized for trying to maximize

organ donations, considered death to be a situation

wherein “individuals who had sustained traumatic

brain injury that caused them to be in an

irreversible coma, and had lost the ability to

breathe spontaneously”6, would be considered dead.

This criticism led to the Presidents’ Committee, set

up for the purpose, in 1981, defining death more

vaguely as the point “where the body’s physiological

system ceases to contribute a uniform whole”.

This definition of whole brain death, however, is

not without its critics. Some argue that the brain

is not always responsible for all bodily

5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of

Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40
(1968).

6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal

Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).
 11

functioning- digestion, growth, and some degree of

movement (regulated by the spinal cord) may not

require any electrical activity in the brain. In

order to combat this argument, and further explain

what brain death could include, the President’s

Committee on Bio-ethics in the United States of

America in 2008 came up with a new definition of

brain death, according to which a person was

considered to be brain dead when he could no longer

perform the fundamental human work of an organism.

These are:

“(1) “openness to the world, that is receptivity to

stimuli and signals from the surrounding
environment,”
(2) “the ability to act upon the world to obtain
selectively what it needs.
and (3) “the basic felt need that drives the
organism to act ... to obtain what it needs.”7

115. When this situation is reached, it is possible

to assume that the person is dead, even though he or

she, through mechanical stimulation, may be able to

breathe, his or her heart might be able to beat, and

7 Ibid.
 11

he or she may be able to take some form of

nourishment. It is important, thus, that it be

medically proved that a situation where any human

functioning would be impossible should have been

reached for there to be a declaration of brain

death--situations where a person is in a persistent

vegetative state but can support breathing, cardiac

functions, and digestion without any mechanical aid

are necessarily those that will not come within the

ambit of brain death.

116. In legal terms, the question of death would

naturally assume significance as death has a set of

legal consequences as well. As per the definition in

the American Uniform Definition of Death Act, 1980.

an individual who “sustain[s] . . . irreversible

cessation of all functions of the entire brain,

including the brain stem, is dead.” This stage,

thus, is reached at a situation where not only

consciousness, but every other aspect of life

regulated from the brain can no longer be so

regulated.
 12

117. In the case of ‘euthanasia’, however, the

situation is slightly different. In these cases, it

is believed, that a determination of when it would

be right or fair to disallow resuscitation of a

person who is incapable of expressing his or her

consent to a termination of his or her life depends

on two circumstances:

a.when a person is only kept alive

mechanically, i.e. when not only
consciousness is lost, but the person is
only able to sustain involuntary
functioning through advanced medical
technology--such as the use of heart-lung
machines, medical ventilators etc.
b.when there is no plausible possibility of
the person ever being able to come out of
this stage. Medical “miracles” are not
unknown, but if a person has been at a
stage where his life is only sustained
through medical technology, and there has
been no significant alteration in the
person’s condition for a long period of
time—at least a few years--then there can
be a fair case made out for passive
 12

euthanasia.

To extend this further, especially when a person is

incapable of being able to give any consent, would

amount to committing judicial murder.

118. In this connection we may refer to the

Transplantation of Human Organs Act, 1994 enacted by

the Indian Parliament. Section 2(d) of the Act

states :

“brain-stem death” means the stage at which

all functions of the brain-stem have
permanently and irreversibly ceased and is
so certified under sub-section (6) of
section 3:”

119. Section 3(6) of the said Act states:

“(6) Where any human organ is to be removed

from the body of a person in the event of his brain-

stem death, no such removal shall be undertaken

unless such death is certified, in such form and in

such manner and on satisfaction of such conditions

and requirements as may be prescribed, by a Board of

medical experts consisting of the following,

 12

namely:-

(i) the registered medical

practitioner, in charge of the
hospital in which brain-stem death
has occurred;

(ii) an independent registered medical

practitioner, being a specialist,
to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority;

(iii) a neurologist or a neurosurgeon

to be nominated by the registered
medical practitioner specified in
clause (i), from the panel of names
approved by the Appropriate
Authority; and

(iv) the registered medical practitioner

treating the person whose brain-
stem death has occurred”.

120. Although the above Act was only for the purpose

of regulation of transplantation of human organs it

throws some light on the meaning of brain death.

121. From the above angle, it cannot be said that

Aruna Shanbaug is dead. Even from the report of

Committee of Doctors which we have quoted above it

appears that she has some brain activity, though

 12

very little.

122. She recognizes that persons are around her and

expresses her like or dislike by making some vocal

sound and waving her hand by certain movements. She

smiles if she receives her favourite food, fish and

chicken soup. She breathes normally and does not

require a heart lung machine or intravenous tube for

feeding. Her pulse rate and respiratory rate and

blood pressure are normal. She was able to blink

well and could see her doctors who examined her.

When an attempt was made to feed her through mouth

she accepted a spoonful of water, some sugar and

mashed banana. She also licked the sugar and banana

paste sticking on her upper lips and swallowed it.

She would get disturbed when many people entered her

room, but she appeared to calm down when she was

touched or caressed gently.

123. Aruna Shanbaug meets most of the criteria for

being in a permanent vegetative state which has

resulted for 37 years. However, her dementia has

 12

not progressed and has remained stable for many

years.

124. From the above examination by the team of

doctors, it cannot be said that Aruna Shanbaug is

dead. Whatever the condition of her cortex, her

brain stem is certainly alive. She does not need a

heart--lung machine. She breathes on her own

without the help of a respirator. She digests food,

and her body performs other involuntary function

without any help. From the CD (which we had

screened in the courtroom on 2.3.2011 in the

presence of counsels and others) it appears that she

can certainly not be called dead. She was making

some sounds, blinking, eating food put in her mouth,

and even licking with her tongue morsels on her

mouth.

125. However, there appears little possibility of her

coming out of PVS in which she is in. In all

probability, she will continue to be in the state in

which she is in till her death. The question now is

 12

whether her life support system (which is done by

feeding her) should be withdrawn, and at whose

instance?

WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT

VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country

as to the legal procedure for withdrawing life

support to a person in PVS or who is otherwise

incompetent to take a decision in this connection.

We agree with Mr. Andhyarujina that passive

euthanasia should be permitted in our country in

certain situations, and we disagree with the learned

Attorney General that it should never be permitted.

Hence, following the technique used in Vishakha’s

case (supra), we are laying down the law in this

connection which will continue to be the law until

Parliament makes a law on the subject.

(i) A decision has to be taken to

discontinue life support either by the

parents or the spouse or other close

 12

relatives, or in the absence of any of

them, such a decision can be taken

even by a person or a body of persons

acting as a next friend. It can also

be taken by the doctors attending the

patient. However, the decision should

be taken bona fide in the best interest

of the patient.

In the present case, we have already

noted that Aruna Shanbaug’s parents are dead

and other close relatives are not interested

in her ever since she had the unfortunate

assault on her. As already noted above, it

is the KEM hospital staff, who have been

amazingly caring for her day and night for

so many long years, who really are her next

friends, and not Ms. Pinky Virani who has

only visited her on few occasions and

written a book on her. Hence it is for the

KEM hospital staff to take that decision.

The KEM hospital staff have clearly

 12

expressed their wish that Aruna Shanbaug

should be allowed to live.

Mr. Pallav Shisodia, learned senior

counsel, appearing for the Dean, KEM

Hospital, Mumbai, submitted that Ms. Pinky

Virani has no locus standi in this case. In

our opinion it is not necessary for us to go

into this question since we are of the

opinion that it is the KEM Hospital staff

who is really the next friend of Aruna

Shanbaug.

We do not mean to decry or disparage

what Ms. Pinky Virani has done. Rather, we

wish to express our appreciation of the

splendid social spirit she has shown. We

have seen on the internet that she has been

espousing many social causes, and we hold

her in high esteem. All that we wish to say

is that however much her interest in Aruna

Shanbaug may be it cannot match the

 12

involvement of the KEM hospital staff who

have been taking care of Aruna day and night

for 38 years.

However, 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 life support.

(ii) Hence, even if a decision is taken by

the near relatives or doctors or next

friend to withdraw life support, such a

decision requires approval from the

High Court concerned as laid down in

Airedale’s case (supra).

In our opinion, this is even more

necessary in our country as we cannot rule

out the possibility of mischief being done

by relatives or others for inheriting the

property of the patient.

 12

127. In our opinion, if we leave it solely to the

patient’s relatives or to the doctors or next friend

to decide whether to withdraw the life support of an

incompetent person there is always a risk in our

country that this may be misused by some

unscrupulous persons who wish to inherit or

otherwise grab the property of the patient.

Considering the low ethical levels prevailing in our

society today and the rampant commercialization 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. There are doctors and doctors. While

many doctors are upright, there are others who can

do anything for money (see George Bernard Shaw’s

play ‘The Doctors Dilemma’). The commercialization

of our society has crossed all limits. Hence we

have to guard against the potential of misuse (see

Robin Cook’s novel ‘Coma’). In our opinion, while

giving great weight to the wishes of the parents,

 13

spouse, or other close relatives or next friend of

the incompetent patient and also giving due weight

to the opinion of the attending doctors, we cannot

leave it entirely to their discretion whether to

discontinue the life support or not. We agree with

the decision of the Lord Keith in Airedale’s case

(supra) that the approval of the High Court should

be taken in this connection. This is in the

interest of the protection of the patient,

protection of the doctors, relative and next friend,

and for reassurance of the patient’s family as well

as the public. This is also in consonance with the

doctrine of parens patriae which is a well known

principle of law.

DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the

country) had originated in British law as early as

the 13th century. It implies that the King is the

father of the country and is under obligation to

look after the interest of those who are unable to

 13

look after themselves. The idea behind Parens

Patriae is that if a citizen is in need of someone

who can act as a parent who can make decisions and

take some other action, sometimes the State is best

qualified to take on this role.

129. In the Constitution Bench decision of this Court

in Charan Lal Sahu vs. Union of India (1990) 1 SCC

613 (vide paras 35 and 36), the doctrine has been

explained in some details as follows :

“In the “Words and Phrases”

Permanent Edition, Vol. 33 at page 99,
it is stated that parens patriae is the
inherent power and authority of a
legislature to provide protection to
the person and property of persons non
sui juris, such as minor, insane, and
incompetent persons, but the words
parens patriae meaning thereby ‘the
father of the country’, were applied
originally to the King and are used to
designate the State referring to its
sovereign power of guardianship over
persons under disability. Parens
patriae jurisdiction, it has been
explained, is the right of the
sovereign and imposes a duty on the
sovereign, in public interest, to
protect persons under disability who
have no rightful protector. The
connotation of the term parens patriae
differs from country to country, for
instance, in England it is the King, in
 13

America it is the people, etc. The

government is within its duty to
protect and to control persons under
disability”.

The duty of the King in feudal times to act as

parens patriae (father of the country) has been

taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice

Kennedy speaking for the U.S. Supreme Court observed

:
“the State has a legitimate interest
under its parens patriae powers in
providing care to its citizens who are
unable to care for themselves”.

131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR

906 (at page 951) Mr. Justice Mathew observed :

“ The Court also is ‘state’ within the
meaning of Article 12 (of the
Constitution).”.

132. 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,

 13

as parens patriae, which ultimately must take this

decision, though, no doubt, the views of the near

relatives, next friend and doctors must be given due

weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT

APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN
INCOMPETENT PERSON

133. In our opinion, it is the High Court under

Article 226 of the Constitution which can grant

approval for withdrawal of life support to such an

incompetent person. Article 226(1) of the

Constitution states :

“Notwithstanding anything in article

32, every High Court shall have power,
throughout the territories in relation
to which it exercises jurisdiction, to
issue to any person or authority,
including in appropriate cases, any
Government, within those territories
directions, orders or writs, including
writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, or any of them, for the
enforcement of any of the rights
conferred by Part III and for any other
purpose”.

134. A bare perusal of the above provisions shows

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that the High Court under Article 226 of the

Constitution is not only entitled to issue writs,

but is also entitled to issue directions or orders.

135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide

paragraph 4) this Court observed :

“This article is couched in
comprehensive phraseology and it ex
facie confers a wide power on the High
Courts to reach injustice wherever it
is found. The Constitution designedly
used a wide language in describing the
nature of the power, the purpose for
which and the person or authority
against whom it can be exercised. It
can issue writs in the nature of
prerogative writs as understood in
England; but the scope of those writs
also is widened by the use of the
expression “nature”, for the said
expression does not equate the writs
that can be issued in India with those
in England, but only draws an analogy
from them. That apart, High Courts can
also issue directions, orders or writs
other than the prerogative writs. It
enables the High Courts to mould the
reliefs to meet the peculiar and
complicated requirements of this
country. Any attempt to equate the
scope of the power of the High Court
under Art. 226 of the Constitution with
that of the English Courts to issue
prerogative writs is to introduce the
unnecessary procedural restrictions
grown over the years in a comparatively
small country like England with a
 13

unitary form of Government to a vast

country like India functioning under a
federal structure.”

136. The above decision has been followed by this

Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani

AIR 1989 SC 1607 (vide para 18).

137. No doubt, the ordinary practice in our High

Courts since the time of framing of the Constitution

in 1950 is that petitions filed under Article 226 of

the Constitution pray for a writ of the kind

referred to in the provision. However, from the

very language of the Article 226, and as explained

by the above decisions, a petition can also be made

to the High Court under Article 226 of the

Constitution praying for an order or direction, and

not for any writ. Hence, in our opinion, Article

226 gives abundant power to the High Court to pass

suitable orders on the application filed by the near

relatives or next friend or the doctors/hospital

staff praying for permission to withdraw the life

support to an incompetent person of the kind above

 13

mentioned.

PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH

AN APPLICATION IS FILED

138. When such an application is filed the Chief

Justice of the High Court should forthwith

constitute a Bench of at least two Judges who should

decide to grant approval or not. Before doing so

the Bench should seek the opinion of a committee of

three reputed doctors to be nominated by the Bench

after consulting such medical authorities/medical

practitioners as it may deem fit. Preferably one of

the three doctors should be a neurologist, one

should be a psychiatrist, and the third a physician.

For this purpose a panel of doctors in every city

may be prepared by the High Court in consultation

with the State Government/Union Territory and their

fees for this purpose may be fixed.

139. The committee of three doctors nominated by the

Bench should carefully examine the patient and also

consult the record of the patient as well as taking

 13

the views of the hospital staff and submit its

report to the High Court Bench.

140. Simultaneously with appointing the committee of

doctors, the High Court Bench shall also issue

notice to the State and close relatives e.g.

parents, spouse, brothers/sisters etc. of the

patient, and in their absence his/her next friend,

and supply a copy of the report of the doctor’s

committee to them as soon as it is available. After

hearing them, the High Court bench should give its

verdict. The above procedure should be followed

all over India until Parliament makes legislation on

this subject.

141. The High Court should give its decision speedily

at the earliest, since delay in the matter may

result in causing great mental agony to the

relatives and persons close to the patient.

142. The High Court should give its decision

assigning specific reasons in accordance with the

 13

principle of ‘best interest of the patient’ laid

down by the House of Lords in Airedale’s case

(supra). The views of the near relatives and

committee of doctors should be given due weight by

the High Court before pronouncing a final verdict

which shall not be summary in nature.

143. With these observations, this petition is

dismissed.

144. Before parting with the case, we would like to

express our gratitude to Mr. Shekhar Naphade,

learned senior counsel for the petitioner, assisted

by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal

Chandra S. Dave, advocates, the learned Attorney

General for India Mr. G. E. Vahanvati, assisted by

Mr. Chinmoy P. Sharma, advocate, Mr. T. R.

Andhyarujina, learned Senior Counsel, whom we had

appointed as amicus curiae assisted by Mr. Soumik

Ghoshal, advocate, Mr. Pallav Shishodia, learned

senior counsel, assisted by Ms. Sunaina Dutta and

Mrs. Suchitra Atul Chitale, advocates for the KEM

 13

Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel

for the State of Maharashtra, assisted by Mr. Sanjay

V. Kharde and Ms. Asha Gopalan Nair, advocates, who

were of great assistance to us. We wish to express

our appreciation of Mr. Manav Kapur, Advocate, who

is Law-Clerk-cum-Research Assistant of one of us

(Katju, J.) as well as Ms. Neha Purohit, Advocate,

who is Law-Clerk-cum-Research Assistant of Hon’ble

Justice Gyan Sudha Mishra. We also wish to mention

the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav

Rangarajan, final year law students in the School of

Excellence, Dr. B.R. Ambedkar Law University,

Chennai, who were the interns of one of us (Katju,

J.) and who were of great help in doing research in

this case.

145. We wish to commend the team of doctors of Mumbai

who helped us viz. Dr. J. V. Divatia, Professor and

Head, Department of Anesthesia, Critical Care and

Pain at Tata Memorial Hospital, Mumbai; Dr. Roop

Gursahani, Consultant Neurologist at P.D. Hinduja,

Mumbai; and Dr. Nilesh Shah, Professor and Head,

 14

Department of Psychiatry at Lokmanya Tilak Municipal

Corporation Medical College and General Hospital.

They did an excellent job.

146. We also wish to express our appreciation of Ms.

Pinki Virani who filed this petition. Although we

have dismissed the petition for the reasons given

above, we regard her as a public spirited person who

filed the petition for a cause she bona fide

regarded as correct and ethical. We hold her in

high esteem.

147. We also commend the entire staff of KEM

Hospital, Mumbai (including the retired staff) for

their noble spirit and outstanding, exemplary and

unprecedented dedication in taking care of Aruna for

so many long years. Every Indian is proud of them.

……….…………………….J.
(Markandey Katju)

…………………………….J.
(Gyan Sudha Misra)
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New Delhi:
March 07, 2011