MANU/SC/0176/2011: Equiv Alent Citation

MANU/SC/0176/2011
Equivalent Citation: AIR2011SC 1290, 2011(59)BLJR561, ILR2011(1)Kerala913, [2011(2)JC R172(SC )], JT2011(3)SC 300, 2011(2)KC C RSN123,
2011 (3) KLT(SN) 26, (2011)2MLJ735(SC ), 2011(2)RC R(C riminal)167, 2011(1)RC R(C riminal)699, 2012(5)RC R(C riminal)706, 2011(3)SC ALE298,
(2011)4SC C 454, (2011)2SC C (C ri)352, [2011]4SC R1057, 2011(1)UC 622, 2011(2)UJ771
IN THE SUPREME COURT OF INDIA

Writ Petition (Criminal) No. 115 of 2009 [Under Article 32 of the Constitution of
India]
Decided On: 07.03.2011
Appellants: Aruna Ramchandra Shanbaug
Vs.
Respondent: Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
Markandey Katju and Gyan Sudha Misra, JJ.
Counsels:
For Appearing Parties: G.E. Vahanvati, Attorney General, T.R. Andhyarujina, Shekhar
Naphade, Pallav Shishodia, Sr. Advs., Chinmoy P. Sharma, Soumik Ghosal, Shubhangi
Tuli, Divya Jain, Vimal Chandra S. Dave, Sunaina Dutta, Suchitra Atul Chitale,
Chinmoy Khaldkar, Sanjay V. Kharde and Asha Gopalan Nair, Advs.
Case Note:
Constitution of India, 1950 - Article 32--Maintainability of petition--Held--
Under Article 32 of Constitution petitioner has to prove violation of
fundamental right--Right to life guaranteed by Article 21 of Constitution
does not include the right to die--Petition is not maintainable."Brain
Death"--Means complete absence of voluntary movements--This patient can
only be maintained alive by advanced life support machine--These patients
can be legally declared dead to allow their organs to be taken for
donation."Coma" Patients--These patients are unconscious--They can not
be awakened even by application of a painful stimules--They have normal
heart beat and breathing and do not require advanced life
support."Permanent vegetative stage"--In PVS complete absence of
behavioral evidence for self or environmental awareness--They can not
voluntarily control passing of urine and stools--They have normal heart
beating and breathing--There is no threat to life and can survive for many
years."Life--Scope of--Held--Life is not mere living in health and health is
not the absence of illness but a glowing vitality."Withdrawal of life
support"--Means and scope--Held--Withdrawal of life support by Doctor is in
law, considered as an omission and not a positive steps to terminate life--
Later would be euthanasia and a criminal offence."Active and Passive
Euthanasia"--Held--Active euthanasia entails use of lethal substances or
forces to kill a person while passive euthanasia entails with holding of
medical treatment for discontinuance of life."Permanent Vegetative Stage"-
-Characteristic--Held--Distinguishing characteristic of PVS is that the brain
stem remains alive and functioning while the cortex has lost its functions--
So PVS patient Continues to breath unaided and his digestion continues to
function--Though his eye are open but unable to see and hear.Indian Penal
Code, 1860--Section 309--Attempt to suicide--Legality--Held--Although
Section 309 I.P.C. has been held to be constitutional valid but time has
come when it should be deleted by parliament as it has become
14-11-2019 (Page 1 of 53) www.manupatra.com Aligarh Muslim University

anachronistic--A person attempt to suicide in a depression and needs
help."Withdrawal of Life Support" of PVS Patient--Requisite--Held--A
decision has to be taken to discontinue life support either by the parents or
spouse or other close 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 doctor attending the patient--Decision
should be taken bona fide in the best interest of the patient.Constitution of
India, 1950--Article 226--Withdrawal of life support-Competent court--
Held--It is the High Court under Article 226 of Constitution which can grant
approval for withdrawal of life support to a competent person--High Court
under Article 226 of Constitution is not only entitled to issue writ but is
also entitled to issue directions and orders.Application for "withdrawal of
life support"--Procedure to be adopted--Held--When application for
withdrawal of life support is filed than the Chief Justice of High Court
should forth with constitute a Bench of two Judges who should decide to
grant approval or not--Before doing so Bench should seek opinion of
experts--For this purpose a panel of Doctors in every city be prepared.
JUDGMENT
Markandey Katju, J.
Marte hain aarzoo mein marne ki
Maut aati hai par nahin aati
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 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 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 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 v. State of Punjab MANU/SC/0335/1996 : 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 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 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
(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,
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 bedridden 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 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.
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.
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 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.
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.
I Vb. 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
) 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.
) 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.
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
(Wade DT, Johnston C. British Med Journal 1999; 319:841-844)
Domain Observed Stimulus Response

Auditory Awareness Startle present, ceases
Sudden loud noise (clap) other movements
Meaningful noise (rattled

Non-specific head and body
steel tumbler and spoon,
movements
film songs of 1970s)
Spoken commands ("close

your eyes", "lift left hand ":
Unable to obey commands.
in English, Marathi and
Konkani)
No specific or reproducible
response
Visual Awareness Bright light to eyes Papillary responses present
Large moving object in front Tracking movements:

of eyes (bright red torch present but inconsistent
rattle) and poorly reproducible
Visual threat (fingers

Blinks, but more consistent
suddenly moved toward
on left than right
eyes)
W ritten command (English,

No response
Marathi: close your eyes)
Somatic Awareness Painful stimuli to limbs

W ithdrawal, maximal in left
(light prick with sharp end
upper limb
of tendon hammer)
Distress but no coordinated

Painful stimuli to face response to remove
stimulus
Routine sensory stimuli Generalized non specific

during care (changing response presence but no
position in bed and feeding) coordinated attempt to
Generalized assist in process
Motor Output Non-specific undirected

activities. Goal directed -
Spontaneous lifting left hand to left side
of face, apparently to rub
her left eye.
Non-specific undirected
Responsive 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.
VII (b) Table 2. Application of Criteria for Vegetative State
(Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):S33-S38)

Examination findings: whether
Criteria she meets Criteria
(Y es/No/Probably)
Unaware of self and environment Y es, Unaware
No interaction with others Y es, no interaction
Y es, no sustained, reproducible or

purposeful behavioural response,
No sustained, reproducible or but:
purposeful voluntary behavioural
response to visual, auditory, tactile or (1) Resisted examination of
noxious stimuli fundus
(2) Licked sugar off lips
Y es, no comprehension
No language comprehension
expression
Blinks, but more consistent on

No blink to visual threat
left than right
Present sleep wake cycles Y es (according to nurses)
Preserved autonomic and

Y es
hypothalamic function
Preserved cranial nerve reflexes Y es
Bowel and bladder incontinence Y es
VIII. References
1. Multi-Society Task Force on PVS. Medical aspects of the persistent
vegetative state. NEngl 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 2nd March, 2011
at 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 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 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 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
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:
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 v. 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 v. 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
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.

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.

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.
1 0 . 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 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 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 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 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.
1 2 . 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 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.
1 4 . 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 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 v. State of Bihar
MANU/SC/0572/1988 : 1988 (Supp) SCC 734 (vide para 2) where it was observed by
this Court:
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 v. Union of
India and Anr. MANU/SC/0433/1994 : (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.
1 7 . The decision in Rathinam's case (supra) was, however, overruled by a
Constitution Bench decision of this Court in Gian Kaur v. State of Punjab
MANU/SC/0335/1996 : (1996) 2 SCC 648.
1 8 . Mr. Naphade, however, has invited our attention to paras 24 & 25 of the
aforesaid decision in which 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.
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.<mpara>
20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next
friend of Aruna as 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.
2 1 . 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 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 incurable today.
2 2 . 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.
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 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.
2 7 . Absent any indication from a patient who is incompetent the test which is
adopted by Courts is 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
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).
3 1 . 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
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 Aruna who is
not totally unconscious and has sensory conditions of pain etc. unlike Antony Bland
i n Airedale v. 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 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 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
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.

3 9 . 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.
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.
4 3 . 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 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.
4 4 . 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.
4 5 . 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 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.)
4 6 . 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, "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.
4 9 . 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
5 0 . 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:
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
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 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 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 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 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.
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.
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 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.
• 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 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 v. 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
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 Code of Criminal Procedure of 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:
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 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 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 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 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.
5 7 . In order to maintain Mr. Bland in his condition, 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.
5 9 . The declaration was granted by the Family 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 given medical care, including
artificial feeding, designed to keep him alive.
6 2 . 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 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 as not being of benefit to the patient.
6 6 . 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 to cut short the life of a terminally-ill patient (unless there is
legislation which permits it).

6 8 . 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.
6 9 . 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 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
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 (1914), per Cardozo J.; 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, 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:
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 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 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 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 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 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 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 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)
7 0 . 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:
(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 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.
7 4 . Thus all the Judges of the House of Lords in the Airedale case (supra) were
agreed that Anthony Bland 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).
77. It is ultimately for the Court to decide, as parens patriae, as to what 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 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
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 v. Glucksberg 521 U.S. 702
(1997) and Vacco v. Quill 521 U.S. 793 (1997).
8 0 . 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 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, 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.
8 4 . 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 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.
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 v. 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 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.
9 0 . 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.
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 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.
9 4 . 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.
9 5 . 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 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 v. State of
Punjab MANU/SC/0335/1996 : 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 v. Union of India
MANU/SC/0433/1994 : 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 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 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.
1 0 3 . 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 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 ?
1 0 6 . A person's most important organ is his/her 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 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. 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."
Black's Law Dictionary 488 (4th ed., rev. 1968) 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 11 cessation of all the vital functions.
Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many
Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).)
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 irreversible 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). 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 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". Section 1, Universal Determination of
Death Act, (The United States Legislation) 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- 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 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. 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) 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 "Seema K. Shah, Franklin
Miller, Can We Handle The Truth? Legal Fictions in the Determination of Death. 36
Am. J.L. & Med. 540 (2010), 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 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. Ibid.
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 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.
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 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, 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.

1 2 0 . 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 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 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 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 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 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
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.
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, 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 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 v. Union
of India MANU/SC/0285/1990 : (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 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. I n Heller v. 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 v. N.M. Thomas MANU/SC/0479/1975 : 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, 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 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.
1 3 5 . I n Dwarka Nath v. ITO MANU/SC/0166/1965 : 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 Article
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 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 v. V.R. Rudani MANU/SC/0028/1989 : 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 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.
1 3 9 . 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 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.
1 4 2 . The High Court should give its decision assigning specific reasons in
accordance with the 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 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, 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.

1 4 7 . 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.
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MANU/SC/0176/2011

IN THE SUPREME COURT OF INDIA

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Meaningful noise (rattled

Spoken commands ("close

Visual Awareness Bright light to eyes Papillary responses present

Large moving object in front Tracking movements:

Visual threat (fingers

W ritten command (English,

Somatic Awareness Painful stimuli to limbs

Distress but no coordinated

Routine sensory stimuli Generalized non specific

Motor Output Non-specific undirected

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Unaware of self and environment Y es, Unaware

No interaction with others Y es, no interaction

Y es, no sustained, reproducible or

Blinks, but more consistent on

Present sleep wake cycles Y es (according to nurses)

Preserved autonomic and

Preserved cranial nerve reflexes Y es

Bowel and bladder incontinence Y es

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