The Aruna Shanbag verdict
The hits and the misses
The Supreme Court has ruled that Aruna Shanbag should be allowed to live. In other words, it has ruled out active euthanasia, which allows someone to terminate the life of someone who is afflicted with an incurable ailment or an irremediable disease.
Aruna’s case was compounded by the fact that she could not express what she herself wanted. Had she been able to express her desire, it would have allowed the court to permit passive euthanasia, as the patient herself desired it.
And passive euthanasia is something that the Supreme Court has now given legal sanction to. Of course, if she had refused to be denied life-support treatment, any attempt to terminate her life would
That, of course, is the best part of the judgement.
Legalising the unspoken, but . . .
One of the finest descriptions of what a doctor’s role should be has been expressed by Dr. Christian Bernard:
“lt is not true that we become doctors in order to prolong life, We become doctors in order to improve the quality of life, to give (he patient a more enjoyable life . . . And the same is true when we are dealing with terminally ill patients: what we should ask ourselves is whether there is still any quality of life left. The doctor who is unconcerned about the quality of life is inhumane; and the real enemy is not death but inhumanity.”
The judgement gives legal sanction to what has always been done, though behind closed door. Most good family doctors, often are known to advise a family about the futility of keeping a patient who is terminally ill in hospital.
Instead, such good doctors often recommend to the family that the patient be kept at home. They are advised to look after him (her), treat the patient with pain-killers if the need arises. Such doctors recommend a treatment that allows the patient to die in the least painful manner as is possible.
Permitting passive euthanasia, though informally, thus prevented unnecessary anxiety and waste of expenditure at a hospital. It also allowed a patient to stay in surroundings that he is most comfortable in. It finally allows for a dignified death.
But most doctors don’t talk about this, because it was illegal till now, even though it was sensible and humanitarian.
This is a far cry from many hospitals which warn relatives against asking for the discharge of a patient who is known to be terminally ill. There are reports of doctors advising relatives against such a move, because they could then be held guilty of abetting a death or a killing. If the relatives persisted, they would issue a discharge certificate “against medical advice”. Fortunately, the present judgement of the Supreme Court takes away this fear.
However, it must also be mentioned that savvy people handled such threats by merely informing administrators of such unscrupulous hospitals of their inability to pay, and then just walked away. Unwilling to be saddled with a patient who could not pay, such hospital administrators eventually agreed to discharge the patient without any adverse comments on the discharge-certificate.
The court judgement now gives legal sanction to something that was done ‘clandestinely’.
But the judgement falls short on one score. It wants the courts to ratify each application for such passive euthanasia. When it is a life and death situation, no family would like to go to a court for ratification. The court should have authorized an administrative process where such ‘clearances’ could be given within 24 hours. By not doing so, the legal sanction to passive euthanasia remains blunted. The best part of the judgement thus becomes infructuous.
Mahatma Gandhi recognized the need to die with dignity
Did Gandhi support Euthanasia? We may have to say ‘Yes’.For him saving a patient from the pain caused by an incurable disease was in the interest of the sufferer.One can’t oppose taking the life in the name of following the ideal of Non-violence.There are two instances in Gandhi’s life from where we can understand his views on the issue.
In a reply to a letter asking if a man had the right to give up life when it became only a burdensome and painful thing, Gandhi wrote:
“My opinion on that point is as follows.A man who is suffering from an incurable disease and is living thanks to the service rendered to him by others without himself doing anything useful in return has the right to end his life. To fast unto death would be much better for him than to drown himself, for it tests his firmness and leaves room for him to change his mind”
In another case, one of his Ashram’s heifers(young cow)fell ill and suffered under great pain. The veterinary surgeon had declared her past all cure. The heifer lay on one side, unable to move, and as it was a big one, she couldn’t be lifted about in order to prevent bed sores.She couldn’t take nourishment and was being tormented by the flies.Although in this case the sanctity of the cow was involved,Gandhi made up his mind “that the true ahimsa required him to put the heifer out of her misery by having her killed as painless a way as possible”.He then called a doctor and when the heifer was dead, Gandhi was in great pain,took a cloth and spread it over its face, and then walked silently back to his room.
(From Gandhi a Life by Krishna Kripalani, NBT publications)
In the words of Gandhi :
“A calf, having been maimed, lay in agony in the ashram and despite all possible treatment and nursing, the surgeon declared the case to be past help and hope. The animal’s suffering was very acute.
In the circumstances, I felt that humanity demanded that the agony should be ended by ending life itself. The matter was placed before the whole ashram. Finally, in all humility but with the cleanest of convictions I got in my presence a doctor to administer the calf a quietus by means of a poison injection, and the whole thing was over in less than two minutes.
“Would I apply to human beings the principle that I have enunciated in connection with the calf? Would I like it to be applied in my own case? My reply is yes. Just as a surgeon does not commit himsa when he wields his knife on his patient’s body for the latter’s benefit, similarly one may find it necessary under certain imperative circumstances to go a step further and sever life from the body in the interest of the sufferer”.
The right to live implies the right to die
Few people realize that while Article 21 of the Indian Constitution does make the right to life a fundamental right, it also allows for death subject to judicial process. It is this judicial process that allows a government or the court to order a soldier to the battlefied, even if it means death. It is the same process that allows a court to condemn to death a convicted criminal. Thus the right to live is not an unlimited and an absolute right. It is subject to legal caveats and conventions.
But the right to die is implicit in other ways. The law permits a person to refuse treatment, even if such a refusal may result in cutting short the life of the patient. Thus, if a patient who can afford dialysis but refuses to take up this painful and inconvenient treatment can technically be guilty of an attempt to suicide. But as he has the right to refuse treatment, it does not invite the provisions of Section 309 of the IPC.
A similar situation arises when cultural practices like santhara among the Jain community allows a person to conclude that his work in this world is done and over with, and that he must now prepare for the soul’s onward journey, namely death. Such a person gradually reduces the amount of food and water he consumes, and gradually allows his body to waste away. Unlike a suicide (which is often done in secrecy), santhara is practiced with the full knowledge and often consent of the entire community. It is a practice that is revered and honoured in much the same manner in which a soldier is honoured for dying on the battlefield.
In many ways, this is a practice that is not alient to Indian culture. Hindu saints are known to take sanyas and even opt for samadhi. This convention and belief involves a sain holding his very breath, and through meditation allows the body and the sould to get separated. In many ways, even the vanaprastha stage advocated by Hinduism allows for a person to leave the merial world and wander into the forest, where he is not longer distracted by the world of attachments. How the person eventually dies, remains unknown. It is another practice that is both voluntary and immensely venerated.
Such a practice derives from the subtle distinction between atma-hatya (destruction of a life) and atma-tyag (sacrifice of a life). It also finds echoes in the Bhagvad Gita which describes the body as a garment which must be discarded when it becomes old or soiled, thus allowing the soul to don a new garment (the transmigration of the soul).
In any case, the Supreme Court’s verdict also goes a step further. It urges the government to draft suitable legislation which makes suicide a criminal act. As Justice V.A.Mohta, former chief justice of Orissa once remarked, “Suicide is the only crime, where the person is punished if the crime does not take place.”
In the present case, the bench of Justices Markandey Katju and Gyan Sudha Mishra has observed, “We are of the opinion that although Section 309 of IPC (attempt to suicide) has been held to be constitutionally valid . . . the time has come when it should be deleted by Parliament as it has become anachronistic”. Such a pronouncement is in sync with an earlier observation of the Law Commission of India (in its Report No 210 delivered on 17 October 2008) stating that there is an urgent need for “Humanisation and decriminalization of the attempt to suicide”.
In this report, the authors have pointed out that “the attempt to suicide may be regarded more as a manifestation of a diseased condition of mind deserving treatment and care rather than an offence to be visited with punishment. The Supreme Court in Gian Kaur focused on constitutionality of section 309. It did not go into the wisdom of retaining or continuing the same in the statute.
“In view of the views expressed by the World Health Organization, the International Association for Suicide Prevention, France, decriminalization of attempted suicide by all countries in Europe and North America, the opinion of the Indian Psychiatric Society, and the representations received by the Commission from various persons, the Commission has resolved to recommend to the Government to initiate steps for repeal of the anachronistic law contained in section 309, IPC, which would relieve the distressed of his suffering. It needs mention here that only a handful of countries in the world, like Pakistan, Bangladesh, Malaysia, Singapore and India have persisted with this undesirable law.”
Is the state guilty of abetment of suicide under IPC 306?
While the Supreme Court has expressed the desire to see the humanization and the decriminalization of Section 309 of the Indian Penal Code which deals with the attempt to suicide, it has chosen to remain silent on the role of the state in its culpability for abetting death.
Unfortunately, when a person dies of starvation, it is because the state has failed to provide him with the sustenance that it is required to under Article 21 of the Indian constitution that guarantees him the right to life. Sadly, even doctors when certifying such a death do not mention starvation as the immediate cause of death. Instead, invariably, the death certificate states that the person died of natural causes, or had a natural death.
When a state abdicates its responsibility, there are very strong grounds for the officers and the elected representatives of the government to be prosecuted for failing in their duty in preventing a death.
It is unfortunate that the Aruna Shanbag judgement does not even make a passing reference to this issue.
The right to life has become a privilege
Can mercy for one be consistent with denial of right to thousands?
The Supreme Court has decreed that Aruna Shanbag must be allowed to live.
But it has chosen to stay silent on one issue that is likely to become extremely vexatious. Can one person be allowed to block a taxpayer-paid-for-bed for 37 years, and thus deprive thousands of other patients whose lives could be saved, especially in a country where there is always a shortage of hospital beds and good medicare?
The issue is pertinent because it is well-known that had Aruna Shanbag not been an employee of KEM hospital, she would not have been nursed and looked after for 37 years. The normal convention for hospitals – worldwide – is that beds are reserved for patients whose ailments can be addressed and remedied – whether it be partial or total.
When a hospital believes that no purpose can be gained from any patient continuing to be in the hospital’s care, that patient is discharged. Thereafter, the patient can be sent home, or to a sanatorium. But hospitals work only on the principle of being able to provide a cure, or in remedying an ailment.
There is hardly any case of any patient being in a hospital bed for over 17 years (Piergiorgio Welby in Italy). The idea is that a patient cannot become a resident of a hospital. And that is precisely the situation that the Supreme Court has chosen not to comment upon.
There are three dangers when such a situation is allowed to persist.
- It makes the treatment of an incurable condition a privilege that can be extended only to those who are well-connected. That can be dangerous, and discriminatory, with dangerous consequences. That is also the reason why even the former Prime Minister of Israel, Ariel Sharon, the highest official of that country, was hospitalized when he went into a coma. But after the doctors realized that there was little more that they could do to alleviate his condition, his family was eventually asked to take him home, Today, he continues to be treated at home, even while he remains comatose.
- It allows one patient in the hospital to receive special attention over everyone else.
- It creates a precedent for other freeloaders to take advantage of a situation where unlimited and near-perennial support can be given at state expense. This is not fair to the taxpayers of a country, and even more detrimental to thousands of other patients who want a hospital bed for being treated there.
In effect, such a situation allows one person to be taken care of even while thousands are allowed to die for want of that hospital bed.
Will the Supreme Court judgement open the flood-gates to more irresponsible killings?
Many doctors and lawyers have been saying that the Supreme Court’s decision to give legal sanction to passive killing will open the flood-gates to more irresponsible and thoughtless deaths.
They say that uncaring children in an attempt to grab the wealth of their parents will consign them to death. One of the doctors on a television show also said that the recently promulgated laws which penalize children for not looking after their parents was inconsistent with this ruling which legalized passive euthanasia.
However, such fears can be quite misplaced, even exaggerated. For one, passive euthanasia is already being practiced quietly, by many doctors of patients in consultation with the rest of the family.
Second, global experience has shown that wherever euthanasia has been legalized (in the Netherlands, Belgium, Switzerland and two states of the US), the number of deaths has not risen alarmingly at all. On the contrary, the figures produced by Dignitas of Switzerland (which allows active euthanasia after a panel of doctors has convinced itself that the patient suffers from an incurable and debilitating illness) show that the number of deaths has actually declined, not increased.
Moreover, once the courts legalise what is known as the Living Will or Advance Directive (it has been legalized in most developed countries, including the UK), a person can draw up a will informing the hospital and the executor of the will of his decision not to be put on life-support systems should he have an accident which prevents him from expressing his decision to the doctors. Legalising such an Advance Directive will minimize the abuse of this provision and will allower for speedier decision making without recourse to the court once again.
But this is another issue that the Supreme court has to grapple with. It has already admitted a petition on this subject a few years ago, and a verdict on this issue is also expected soon.